There was never any doubt that the Lochner litmus test would certify Sonia Sotomayor as a Supreme Court nominee acceptable to the Senate. As I noted in my Objective Standard article, “Justice Holmes and the Empty Constitution,” the 1905 case of Lochner v. New York (which struck down a maximum hours law for bakers) furnishes a tool for discerning a judge’s fundamental view of the Constitution:
- Is the Constitution a document of liberty, designed (perhaps with some errors) to preserve individual rights against government power? If a judge thinks so, then he or she is likely to regard the Lochner Court’s decision as a proper result (albeit perhaps reached by a debatable analysis).
- Or is the Constitution an empty vessel, devoid of any principles protecting the individual against the state? If that is a judge’s view then he or she will join the almost universal chorus of legal professionals who believe Lochner was wrongly decided.