Aaron Wells

Lochner delayed New Deal protections; Roberts risks eroding them. For the working class, it’s the same fight: Can democracy regulate capital, or does the Court entrench inequality? History argues that unelected judges shouldn’t pick economic winners, yet here we are.

Non-consensus footnote: Some libertarians defend Lochner as shielding workers from “paternalism;" a few see Roberts as restoring balance against “administrative state overreach.” But mainstream view: Both have tilted the scales against labor’s gains.

The Lochner comparison isn’t about identical issues: it’s about structure. Each Court appears to use constitutional doctrine to narrow democratic control over major economic and regulatory policy. Critics see an unelected court reshaping the political economy from the bench.

The Roberts Court is currently considering whether presidents can fire leaders of independent agencies like the FTC at will. If it overturns Humphrey’s Executor (1935), a core New Deal safeguard falls, placing regulators under direct presidential control and weakening democratic economic oversight.

In Loper Bright v. Raimondo, the Court ended Chevron deference, meaning judges, not expert agencies, now interpret ambiguous regulatory laws. This makes it easier to block environmental, labor, health, and consumer regulations in court, shifting power from regulators to corporations and judges.

Supporters call this a restoration of proper judicial limits; critics argue it weakens broad constitutional protection and concentrates power in the executive branch, another structural salute to Lochner-era constraints on democratic checks.

In Trump v. CASA (2025), the Court sharply limited the ability of lower federal courts to issue nationwide injunctions against executive actions.

Critics compare the San Francisco vs EPA ruling to Lochner-era logic: judges using narrow readings of law to restrict regulatory power and tilt the balance toward regulated entities over public welfare.

Recently, the Supreme Court’s 2025 ruling in San Francisco v. EPA narrowed how the Clean Water Act can be enforced, limiting the EPA’s ability to require outcome-based water quality standards.

Lochner protected “economic liberty” amidst trusts; Roberts champions “free speech” for corporations, the tech/finance giants. Both eras have seen the Court as a defense against majority rule, favoring the powerful over the common man. papers.ssrn.com/sol3/papers....

Both courts have insulated economic power from democracy: Lochner blocked Progressive reforms; Roberts has weakened federal oversight (major questions doctrine). Outcome? Inequality spikes: Lochner prolonged Gilded Age misery; Roberts fuels tech-economy perils.

The Roberts era flips Lochner’s script: Less “liberty of contract,” more “corporate speech” and “religious freedom” to deregulate. NFIB v. Sebelius (2012) limited ACA’s mandate; West Virginia v. EPA (2022) curbs agency rules on pollution/wages. Workers pay the price.

Fast-forward to the Roberts Court: Not identical, but structural parallels. Citizens United (2010) unleashed corporate cash in elections, tilting power to elites. Janus v. AFSCME (2018) gutted public unions, hitting working-class bargaining power severely. chicagounbound.uchicago.edu/supremecourt...

Rehabilitating Lochner In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated ...

Lochner let industrial giants run wild during the late Gilded and "Progressive" eras. The Court invalidated some 160 reforms, blocking democracy’s response to child labor, unsafe mines. Critics called it a “judicial oligarchy” favoring capital over laborers. Some today continue defending this court.

The 14th Amendment, written to protect newly freed Black citizens, was flipped into the strongest capitalist legal shield that American corporations and employers enjoyed until 1937.

The Court ruled that state laws setting maximum hours, minimum wages, or union rights violated the employer’s and the worker’s 14th-Amendment “liberty” to negotiate freely, even if the worker had no real bargaining power.

The Lochner Court Weaponized the 14th Amendment, which says:
“No State shall … deprive any person of life, liberty, or property, without due process of law.” The Lochner-era Court (1897–1937) read this single word, "liberty," in a very selective way:

Lochner Court’s approach: Using the 14th Amendment to protect bosses’ “liberty” over workers’ rights. Struck down max-hours laws (Lochner), min-wages for women (Adkins 1923), union protections (Adair 1908). Result: Deadly factories, 12-hr days, no safety nets for the working class.

The Lochner Court's "danger" to the common man is a general consensus view among historians in terms of blocking democratic reforms amid prolonged Gilded Age inequality. (Gillman, 1993; Forbath, 1991). Roberts Court comparisons are common in 2020s scholarship (Balkin, 2012; Sunstein, 2018).

The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence

Historians call the early 20th-century Court the “Lochner era” after Lochner v. New York (1905), which struck down labor laws as violations of “freedom of contract.” Some see echoes in the Roberts Court. A look at their respective dangers to the working class is useful, even if not foolproof.

What a disgusting abomination to associate one of the most tenacious and majestic dog breeds, the Catahoula, with the Maga DHS.

YouTube video by Future Histories Podcast Pat Devine on Negotiated Coordination | Future Histories S02E33

*With his 1988 book, Democracy and Economic Planning: The Political Economy of a Self-governing Society, Pat Devine put forward a concrete model of how democratic economic planning could actually work, and it is one of the essential reads for people interested in the debate*
youtu.be/HSzcAw_2NV0?...

Chattel slavery's end was monumental. But emancipation came with a price: within a decade the South was rebuilt on sharecropping debt servitude, convict leasing, and Jim Crow terror, a new racial apartheid, just without the auction block. The North could live with this for nearly a century.

Emancipation was an unprecedented liberation event: 4 million people freed, the plantation system dismantled. Yet “Interest-Convergence” partially explains this: Northern capital needed the South’s slave system dead so its land, labor, and markets could be adapted to the white wage-labor empire.

Emancipation overthrew the Plantation Empire but entrenched Northern segregation as the dominant model for white supremacy, ensuring the Civil War's outcome remained one of racial domination, not equality.

Wartime abolitionism radicalized Union policy, freeing 4 million people and arming 180K Black soldiers. Yet this "Second American Revolution" did little to dismantle the North's own apartheid structures: Black Codes barring freed POC from land ownership or testimony rights, etc.

While the moral push for abolition, exemplified by Black enlistment, the Emancipation Proclamation, and the 13th Amendment, marked a profound victory, it coexisted uneasily with Northern expansionism's racial exclusions.

By war’s end, abolition’s moral win (13th Amendment) arguably offset Northern apartheid’s triumph. Still there were Black Codes in “free” states, Chinese Exclusion (1882), and Dawes Act (1887) land grabs from Natives. The war ended chattel slavery, not the dominant system of white land monopoly.

The Homestead Act (1862) gave 160-acre plots to heads of household (implicitly white men), while California’s 1850 constitution banned Black testimony in court, legalised the indentured servitude of the Indigenous, and built a legal framework for their ethnic cleansing/genocide in the 1850s–1870s.