Nebbia V. New York

• Roberts 1934. Holding. SCt sustained a NY regulatory scheme establishing minimum and maximum prices for mil during the Great Depression.

• Nebbia recognized some redistributive ends as permissible. SCt did not explicitly reject the Lochner philosophy. However, the majority noted that due process required only that “the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.” A state was free “to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose.”

• Broader than “public interest” businesses. Majority also explicitly rejected the contention that only businesses involving a special “public interest,” such as utilities or monopolies, could be subjected to governmental price regulation.

• Significance. Nebbia’s requirement of a substantial means-end relationship was essentially the test of Lochner. But the Nebbia Court was clearly determined not to impose upon legislatures its own views about correct economic policy, as the Lochner Court had done. On the other hand, this case was less clear in its abandonment of the previous framework than West Coast Hotel Co.

West Coast Hotel Co. V. Parrish – The death of Lochner – Female minimum wage

• Hughes 1937. SCt explicitly overruled one of the major Lochner-era precedents.

• Holding. SCt upheld a state minimum wage law for women, and thereby explicitly overruled the Adkins case.

• SCt’s argument turned, not on judicial usurpation, but on the substantive justice of minimum wage legislation. The language denouncing “a subsidy to unconscionable employers” departs from the assumption that the common law baseline is a natural fact rather than a government creation. With this decision, Lochner was clearly dead.

• SCt mentioned the state’s interest in protecting the health of women. But it gave substantial weight to the state’s interest in redressing women’s inferior bargaining power as well. SCt conceded that the minimum wage law interfered with “freedom of contract,” but unlike Adkins (or Lochner), the decision concluded that a readjustment of economic bargaining power in order to enable workers to obtain a living wage was a legitimate limitation on that freedom of contract.

United States V. Carolene Products Co. – Filled milk

• Stone 1938. A presumption of constitutionality would be applied in the case of an economic regulation subjected to due process attack.

• Holding. SCt sustained against a due process attack a federal prohibition on the interstate shipment of “filled” milk (e.g. skimmed milk mixed with non-milk fats).

• Rationale. SCt noted that Congress had acted upon findings of fact (e.g. committee reports) showing a public health danger from the filled milk. But even in the absence of explicit legislative findings, SCt held, “the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” This test might be characterized as a “minimum rationality” standard, coupled with a presumption of constitutionality.

• Significance. This case provides maximum deference to the legislature, presuming that facts support the legislation. The case thus stands for a rule of judicial abdication.

• Footnote 4. However, the famous footnote 4 [certainly the most important footnote in all Constitutional Law], sets forth three exceptions, each in a separate paragraph. Each became the basis of an important line of subsequent case law.

• First paragraph. Described the incorporation of the bill of rights.

• Second paragraph. Refused to presume the constitutionality of “legislation which restricts those political processes [such as voting, expression, and political association] which can ordinarily be expected to bring about repeal of undesirable legislation,” anticipates

1. the representation-reinforcing cases (e.g. Baker v. Carr); and

2. the representation-reinforcing approach proposed by Ely. The difficulty with Ely’s approach is that it involves just the kind of value judgments that he finds so indeterminate in the other approaches, as Brest’s critique observes.

• Third paragraph. Worried about legislation that “reflects “prejudice against discrete and insular minorities.” This anticipates the equal protection cases below.