From The Least Dangerous Branch:

“Mr. Roosevelt, as is well known, failed to pack the Court.… But time unpacked it, and… [i]n a few years they cleaned up after the old Court. A great many measures which almost everyone would concede today, denoted social and economic progress had been laid beside the Due Process and Equal Protection Clauses, or beside the Commerce Clause, and had been struck down because they were found to be round where they should have been square.” (p. 90)

Published in 1962, I’m quite skeptical that “almost everyone” actually felt the way Bickel did at the time. Even Lochner was less than 60 years old. Pro-regulatory chestnuts like Nebbia and West Coast Hotel were a mere 28 and 25 years old, respectively. That’s less than Roe v. Wade’s current 32-year age, but Roe is still commonly discussed and fairly contentious.

Bickel can be forgiven his hyperbolic “almost everyone” as literary technique, but my belief is that plenty of people actually did believe this was true, simply because Bickel (and others) said it. Learning from Bickel et al, they took these cases to be unassailable. This happens today with Roe, but if it’s truly an unassailable outcome, why do so many fear it will be overturned? What I’m suggesting then, is that Bickel and others, in the late 50s and 60s, turned anti-Lochnerism and regulation, generally, into the jurisprudential equivalent of Roe today.

Next in the series: more on the connection between Roe and Lochner.