Rehabilitating Lochner in Sorrell v. IMS Health?

June 23rd, 2011

I just touched down at Chicago, O’Hare, and have had about 2 minutes to read through the opinions issued. Sorrell v. IMS Health looks like a doozie with a number of references to Lochner.

Justice Breyer litters his opinion with fears that second-guessing legislatures will result in a return to Lochnerism.

To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial mes- sage) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory pro- grams can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threat- ening to distort or undermine legitimate legislative ob- jectives. . .  To apply a “heightened” standard of review in such cases as a matter of course would risk what then-Justice Rehnquist, dissenting in Central Hudson, described as a

“retur[n] to the bygone era of Lochner v. New York, 198 U. S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to imple- ment its considered policies.” 447 U. S., at 589.

Yikes. Breyer thinks we are returning to Lochnerism.

Moreover, given the sheer quantity of regulatory initia- tives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitu- tionalization of economic theories preferred by individual jurists. See Lochner v. New York, 198 U. S. 45, 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory inter- ests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents.

And in what must be an ode to my article on Pandora’s Box:

At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, e.g., supra, at 7–8, 9–11. At worst, it re- awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central Hudson, 447 U. S., at 589 (Rehnquist, J., dissenting).

Justice Kennedy shoots him down pretty quick with this quip:

The Constitution “does not enact Mr. Her- bert Spencer’s Social Statics.” Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.

In my podcast with David Bernstein about his new book, Rehabilitating Lochner, he said that anyone who raises Lochner in a constitutional argument should basically lose by default. I declare a TKO of Justice Breyer.

H/T Corey Carpenter for tipping me off about this point while I was in flight.