Congress Before the Lochner Court

Abstract:     
This article examines the political history of the judicial review of federal statutes by the Lochner Court, in particular between the years of 1890 and 1919. In doing so, it situates this notorious Court within its political context and suggests the extent to which the Court was operating in cooperation, rather than in conflict, with other national political officials during this period. The article demonstrates that the invalidation of federal statutes rarely, if ever, pitted the Court against a clear majority of elected national officials. This article also exposes the more routine work that the Court does in exercising the power of judicial review, and suggests the value of that work.

Keywords: Lochner, judicial review, countermajoritarian, judicial supremacy

Accepted Paper Series