Thursday, October 20, 2022

The Wages of Crying Lochner!

Guest Blogger

For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).

Douglas NeJaime & Reva Siegel 
In Constructing Basic Liberties, Jim Fleming seeks to justify and reinvigorate substantive due process at a moment when the Court is seeking to destroy important branches of it. “[O]ur commitments to liberty,” Fleming shows, have been built out “over time on the basis of experience, new insights, and moral learning.” (p. 44) This “process of common law constitutional interpretation,” Fleming argues, underlies “the coherence and structure of our practice of substantive due process.” (Id.; see also p. 165) How bold of Fleming to execute a defense of Roe, Lawrence, and Obergefell—each grounded in substantive due process—just as the Court is upending American law and life with Dobbs.
In Dobbs, as well as in dissents in Obergefell, the Justices who are determined to savage modern substantive due process law equate it with Lochner. But why is “Lochner!” such a powerful epithet?
Lochner!” became a term of denunciation, Jamal Greene shows, as both liberals and conservatives united in their repudiation of the case. Answering the Lochner objection and showing how the modern substantive due process precedents differ from Lochner and the old substantive due process precedents is critical. Fleming offers a powerful explanation.
In this post, we highlight features of an account that complements Fleming’s but also diverges in important respects from his, which is set forth in our 2021 N.Y.U. Law Review article, Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy.
The extension of Lochner to contemporary substantive due process doctrine begins with Justice Black in Griswold, but it can be most powerfully traced to John Hart Ely’s famous 1973 critique of Roe in The Wages of Crying Wolf, published in the Yale Law Journal, and his foundational 1980 book, Democracy and Distrust, elaborating his democracy-reinforcing theory of judicial review.
Ely had an important big idea—that judicial review (in a case like Brown v. Board of Education) could be “democracy-reinforcing” by restricting legislative sovereignty and repairing the infrastructure of representation. Ely grasped that democracy could not be reduced to majoritarianism, and that prejudice could produce deliberative blockages that would exclude, in the language of Footnote Four of Carolene Products, discrete and insular minorities. 
But Ely never saw how the democracy-reinforcing theory of judicial review he proposed might extend to the substantive due process cases he attacked. As we have explored at greater length, Ely had blind spots, characteristic of the legal academy at the time, that led him to underestimate the forms of bias that women and LGBTQ people faced and the different ways that the organization of the family can constrain democratic participation. The family is a fundamental institution of life, no less than are institutions of education or the media.
Ely did not fathom this possibility. Indeed, he seemed to view as perfectly natural the all-male worlds in which he moved. His blind spots were surely widespread in the legal academy of his day. When Ely was teaching at Yale at the time he published The Wages of Crying Wolf, the law faculty included only one tenured woman. When Ely was teaching at Harvard at the time of Democracy and Distrust’s publication, there were only two women on the tenured faculty—the first of whose tenure was significantly delayed. Had Ely had more women colleagues, one might have explained to him how the due process and equal protection rights he questioned were also rights that promoted the equal participation of marginalized groups.
But without being confronted with the views of women colleagues, Ely seemed to barely question the legitimacy of all-male legislatures deciding questions about women’s autonomy. Ely went out of his way to question abortion rights on both liberty and equality grounds. He disparaged the case for judicial scrutiny of abortion restrictions: “Compared with men, women may constitute such a ‘minority’; compared with the unborn, they do not. I’m not sure I’d know a discrete and insular minority if I saw one, but confronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I’d expect no credit for the former answer.” Ely, supra, at 934–35. Yet he never paused to explain how all-male legislatures were constitutionally adequate to represent either group. (Ely, pp. 934-35)
In short, Ely disparaged or ignored women’s equality claims. At the time Ely wrote The Wages of Crying Wolf, women in the Yale student body had been mobilizing against Connecticut’s criminal abortion statute. And they were supported by one of Ely’s faculty colleagues, who co-authored with them an article that became an authoritative history of the Equal Rights Amendment. Women in the school and the state succeeded in getting a federal court to invalidate the Connecticut abortion law in Abele v. Markle on equality-inflected grounds. Yet Ely dismissed Roe by crying “Lochner!” without even mentioning the Connecticut decision that preceded Roe. Two decades later, Ely explained, “I don’t think a principled opinion along these lines could have been written at the time” Roe was decided. This is a puzzling statement, seemingly explained more by his own biases and the demographics of the legal academy. As Fleming points out (p. 179), in 1992 Ely found his way to endorsing Casey, which protected the abortion right on equality-inflected grounds.
Ely’s target was Roe, but he rejected other substantive due process liberties as well. As Fleming explains (p. 136), Ely was more sympathetic to the equal protection claims of “homosexuals” than of women, but he did not recognize how sexual liberty claims for gays and lesbians could be democracy reinforcing. Again, we note, he espoused these views at a time when the Yale and Harvard law faculties on which he served included no out gay members.
As we discuss at greater length in our published account, prevailing norms and biases of the legal academy seem to have shaped the ways that Ely identified the institutions and practices that are democracy reinforcing. He did not take sufficient account of the ways in which the claimants in cases like Griswold, Roe, Bowers, and Lawrence were members of marginalized groups seeking to break into the democratic process. Women and LGBTQ groups developed forms of protest—speak outs and coming out—to contest the stigmatization and criminalization of the conduct the law prohibited. Courts provided venues in which to circumvent deliberative blockages created by decades of criminalization and to open conversations about legitimate uses of the criminal law in private life. Ultimately, both women and LGBTQ people asserted liberty- and equality-based claims to engage in the conduct that the law had long banned.
As our article develops at greater length, courts protecting substantive due process rights in cases from Griswold to Obergefell were intervening in conditions of political inequality and stigma and were supporting the democratic participation of marginalized groups. When analyzed with attention to the background conditions confronting those who asserted constitutional liberty claims, we can see, contra Ely, the Court’s modern substantive due process decisions are, like equal protection decisions protecting racial minorities, examples of democracy-reinforcing judicial review.
We observe in closing that in Dobbs v. Jackson Women’s Health Organization, Justice Alito invoked the specter of Lochner as justification for adopting the Glucksberg standard to reverse Roe and to discredit modern substantive due process cases. It will take decades to reckon with Dobbs. As we do, we need to end the practice of unexamined citations to Lochner!  Without determining the scope of Lochner!’s meaning, an unexamined appeal to Lochner! can threaten liberties that enable Americans from all walks of life to more fully participate in our democracy.
This is the great contribution of Jim Fleming’s book.
Douglas NeJaime is the Anne Urowsky Professor at Yale Law School. He can be reached at
Reva Siegel is the Nicholas deB. Katzenbach Professor at Yale Law School. She can be reached at

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