The Supreme Court acquiesced in the development of a federal police power, from sharp division in the lottery case to unanimity on the far more expansive Mann Act. It also endorsed progressive legislation in the states, though one of the most tenacious fables in American history depicts the Court as a prominent obstacle to social reform. Some observers called attention to the falsity of the Court’s anti-progressive reputation even before World War One, but the legend only extended in subsequent decades. Scholars have more systematically refuted it in recent decades, but it persists in the popular mind, among non-specialist historians, and in the legal world. The legend hinges principally on one case, Lochner v. New York, in which the Court overturned a New York law that limited the hours of bakers to ten per day and sixty per week. The case became eponymous, the whole period from 1890 to 1937 being called “the Lochner era.” In fact, Lochner was an aberration. The Court’s regular acceptance of flimsy police-power pretexts legitimized many pieces of class legislation. Plessy v. Ferguson, in which the majority blithely accepted racial segregation as a means to preserve public peace, better characterizes the Court in this period.

PRECURSORS

The state courts began to use the due process clause to strike down legislative acts twenty years before Lochner. Earlier steps taken by the Supreme Court derived from interstate discrimination and the preservation of the national market; Lochner marked its first application to a purely intrastate police-power question. The most important precedent was the Jacobs case, decided by the New York State Court of Appeals in 1885. Jacobs arose out of an effort by the Cigar Makers Union to outlaw the manufacture of cigars in private tenements in cities with a population over 500,000. Samuel Gompers, later president of the American Federation of Labor, led the effort.