I last discussed Lochner (in 1962, when The Least Dangerous Branch first came out) as being what I dubbed “anti-Lochnerism” as being “the jurisprudential equivalent of Roe today.” As is often discussed, Lochner-type substantive due process is essentially what became the reasoning for Roe. Of course, the left is generally in favor of Roe, but dismissive of Lochner. Roe-Lochner reconciliation, then, has become a sort of cabin industry unto itself, even in the new book What Roe v. Wade Should Have Said (edited by Jack Balkin).

But by saying anti-Lochnerism was “the jurisprudential equivalent of Roe today,” I actually mean to say something somewhat different. I mean that anti-Lochnerism should be considered, at least at that time, as (at best) only as settled as Roe is today. One can disagree over the merits or lack thereof in Roe, but surely nobody can seriously maintain that the doctrine is not in question. Why would it become a touchstone for Supreme Court nominees if it weren’t foreseeable that the doctrine could be overturned in a not so distant Court term?

Of course, while the hyperbole advanced by Roe supporters can be likened to the anti-Lochnerists, there is some distinction yet. To no longer recognize a right to abortion under the Constitution would actually require Supreme Court invalidation of current precedent. Lochner, however, was never expressly overruled, and its essence – substantive due process – has retained at least some vitality (e.g. in Roe).

As then Justice Rehnquist said in his Roe dissent:

Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

Be it abortion or substantive due process, generally, Rehnquist offered wise counsel for yesterday and today alike: the very existence of debate is strong, if not conclusive, evidence of the non-universality of the principle. But Bickel, and especially those that followed him, seem not to have acknowledged this at all. (Bickel was, of course, writing before Roe, but the logic was true even before Rehnquist's putting into writing.)