Not Lochner!: Substantive Due Process as Democracy-Promoting Judicial Review

In Dobbs v. Jackson Women’s Health Organization and Obergefell v. Hodges, the Justices who attack substantive due process law equate it with Lochner. Today, crying “Lochner” has so much force that it is often unclear what the objection itself entails. “Lochner” warns federal judges to defer to a legislature’s judgments in enacting ordinary social and economic legislation. But the modern substantive due process cases do not concern such legislation. In modern substantive due process cases, judges invoke Lochner to express a far-reaching objection: to warn judges against protecting unenumerated rights and second-guessing the decisions of democratic bodies.