In the midst of arguments Dobbs, Justice Breyer continued his long-standing jeremiad against Lochner. Breyer claimed that, during the Depresion Lochner became unsustainable because it required “pure laissez faire.”
Then they said: Are you going to sit down here in the middle the depression and tell me this –that Lochner with all its cases and pure, just about pure laissez faireWe can manage the country in that manner.
No, Lochner and related cases did not mandate “pure laissez faire.” Justice Holmes’s disapproval, Justice Holmes was wrong to say that the majority didn’t “decide on an economic theory which most of the country doesn’t entertain,” specifically, laissez faire capitalism. Justice Peckham’s majority opinion supported all parts of the New York Bakeshop Act except one, the maximum hour provision. In fact, nine Justices agreed with Justice Peckham that the Bakeshop Act’s health- and safety regulations are valid police exercises. Both the majority of Justices supported the ventilation regulations, including ceiling heights, washroom locations, floor cleanliness, and bathroom location. Not even close to “pure laissez faire” capitalism.
Justice Breyer continues to be afflicted by this condition. Lochnerphobia. You know the solution. Lochner? West Coast Hotel v. ParrishThe Court was retorted in this case. scrupulous neutrality.