To rub yet more salt in the wound, such injunctions were often justified under the Sherman Anti-Trust Act of 1890. Originally designed to break up monopolies, it would be used far more frequently to bust strikes (and sympathy boycotts) on the grounds that they were "conspiracies in restraint of trade." The court repeatedly enjoined "secondary boycotts"; that is, supportive actions by other unions or groups sympathetic to striking workers. It also struck down a Kansas statute that banned "yellow dog contracts" " agreements promising that they would never join a union that many workers were forced to sign on being hired.
Laws that attempted to ameliorate the harshness of working-class life were treated with similar disdain. New York state, for example, passed one banning cigar making in tenement workshops as a danger to workers' health. The court saw otherwise, treating such tenement dwellers as independent contractors who had freely chosen their way of life.
New York also tried to limit the hours bakers could work to 10 a day and 60 a week. At the time, they were normally compelled to work 75 to 100 hours weekly in ill-ventilated cellars of tenement bakeries where breathing in the flour was a danger to their lungs. The justices begged to differ. In Lochner v. New York " named after the bakery owner who sued the state " they refused to recognize any threat to the well-being of bakers who, in the eyes of the court, had freely contracted to work on those terms. They were after all as free as their employers to strike a bargain or choose not to work.
The freedom of contract was then the reigning judicial orthodoxy, inherited ironically enough from the long struggle against slave labor. Unlike slavery, free labor allegedly enjoyed an equality of standing in any contractual relationship with an employer. Laws or unions which interfered with that "freedom" were rendered nugatory by the Court and it didn't matter how obvious it was that the imputed equality between owners of capital and the men and women compelled to work for them was illusory.
The only laws of that sort which passed muster were those protecting women and child laborers. The justices considered such workers inferior and dependent, and so, unlike men, unable to freely enter into relations of contractual equality. In the case of women, there was the added danger of jeopardizing their maternal role. Still, consider it an indication of just how reliant businesses had then become on child labor that even a federal law that controlled the ages and hours children could work was, in the end, struck down by the Supreme Court.
The Court v. the People
By the turn of the twentieth century, the outcry against "judge-made law," the willful manipulation of the Constitution to shore up endangered bastions of wealth and power, had grown ever stronger. Some more recent scholars have found the court's rulings then not as one sided as its reputation suggests, but contemporaries certainly didn't share those doubts.
When the Supreme Court overturned an income tax law, a dissenting justice vividly described its decision as a "surrender to the moneyed classes."
Similarly, in 1905, Supreme Court Justice Oliver Wendell Holmes broke with his colleagues when they ruled in the Lochner case, noting that "the 14th amendment does not enact Mr. Herbert Spencer's Social Statics." (Spencer was then the world's foremost proponent of social darwinism and a staunch defender of free-market economics.) A few years later, future Supreme Court Justice Louis Brandeis cuttingly noted that "to destroy a business is illegal. It not illegal to lower the standard of the working man's living or to destroy the union which aims to raise or maintain such a standard. A business is property" A man's standard of living is not property."
Other voices were also being raised in alarm over the coming of a "judicial oligarchy." Politicians from former president Theodore Roosevelt to perennial Socialist Party presidential candidate Eugene Debs began denouncing "the rogue court." When he ran again for president in 1912 as the candidate of the Bull Moose, or Progressive Party, Roosevelt declared that the people are "the ultimate makers of their own Constitution" and swore that Americans would not surrender that prerogative to "any set of men, no matter what their positions or their character." His rival for the party's nomination, Wisconsin senator Robert LaFollette, typically offered this observation: "Evidence abounds that" the courts pervert justice almost as often as they administer it." There existed, he concluded, "one law for the rich and another for the poor."
Calls for reform back then should sound eerily familiar today. Populist presidential candidate James Weaver urged that Supreme Court justices be elected and lifetime terms abolished. A bill introduced in Congress proposed that a majority of both houses should have the power to recall and remove a judge from office. Another demanded a super-majority of justices " seven out of nine " be required to invalidate a law. Roosevelt argued that there should be popular referenda on the court's decisions. The Socialist Party demanded that the Supreme Court's power to review the constitutionality of federal laws be done away with and all judges elected for short terms.
Still, the court prevailed until the Great Depression of the 1930s. President Franklin Roosevelt, however, passed new laws regulating business and finance, as well as a national minimum wage and maximum-work-hours statute, while legalizing the right to join a union. Together with yet another uprising of beleaguered industrial workers in those years, this would shift the balance of power. Even then, the Supreme Court justices at first succeeded in nullifying key pieces of Roosevelt's economic recovery legislation, while Democrats at the time, (as today), talked about adding new justices to the court.
In the end, however, the national trauma of a capitalism seemingly on the verge of collapse, the weight of changing public opinion, and the aging out of some of the justices ended the dominion of the Lochner court.
"The Race Question"
During the long years of opposition to that court, little of the criticism touched on "the race question." How to account for that? From the Gilded Age of the late nineteenth century to Roosevelt's New Deal, Americans were preoccupied with "the labor question" (as it was then called) " that is, how to deal with the great social divide between capital and labor opened up by industrialization.
The silence when it came to the no less striking racial bias of the Supreme Court speaks to a ubiquitous national blindness on matters of racial justice then. Of course, segregation was settled law at the time. In the words of a justice deciding the Plessy case, white supremacy was "in the nature of things." (Sound familiar?) So, too, the relative weakness of mass movements addressing the racial dilemma during the Lochner court years was striking, making the issue easier to ignore.
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