Congress Before the Lochner Court

Posted: 22 May 2005

See all articles by Keith E. Whittington

Keith E. Whittington

Princeton University - Department of Political Science


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

Suggested Citation

Whittington, Keith E., Congress Before the Lochner Court. Boston University Law Review, Vol. 85, No. 3, Summer 2005. Available at SSRN:

Keith E. Whittington (Contact Author)

Princeton University - Department of Political Science ( email )

Corwin Hall
Princeton, NJ 08544-1012
United States
609-258-3453 (Phone)
609-258-1110 (Fax)


Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics