During oral argument today in Department of Transportation v. Association of American Railroads (transcript here), Justice Breyer does what he does best–raise the specter of Lochner. He did it in Active Liberty and Sorrell v. IMS Health most recently. Today, he worried that a ruling agains the government would “work havoc” on the regulatory state.

JUSTICE BREYER: Going back to Carter v. Carter Coal.

MR. GANNON: Yes.

JUSTICE BREYER: We could go back to Lochner.

Jonathan Keim reports that Breyer made the comments looking right at Nino:

And then it happened: Justice Breyer looked right at Justice Scalia and asked whether deciding the case for the plaintiffs would take us all back to Lochner v. New York (1905),

Justice Breyer returned to Joseph Lochner’s bakery while questioning counsel for the railroads.

JUSTICE BREYER: My reaction was the way you deal with that normally is the statute would be interpreted not to give them the authority to write anticompetitive regulations and you’d attack it under the antitrust laws. There may be other ways to do it.  I’ve never heard of an example where the due process problem really was a constitutional problem under due process. Now ­­ now, maybe there’s some cases I’ve overlooked. The only one coming close, it seemed to me,  is Carter v. Carter Coal, which I always put in the same box as Lochner. Now ­­ now, are we supposed to resurrect that? Is there other authority for that proposition? What is it?

Thomas Dupree answers that Carter Coal remains vital today, and is not a “remnant of the Lochner era.”

I second Jonathan’s comment that Lochner has become a Godwin’s law for the Supreme Court:

Lochner has long been invoked in legal discussions as a reductio ad absurdum: What you’re proposing would take us back to the Lochner era, so you must be wrong. (If you are familiar with Godwin’s Law for Internet discussions, substitute “Lochner” for “Nazis” and you’ve basically got the idea.)