June 26, 2015

READ THIS LEARNED FOOTNOTE: Texas Supreme Court Justice Willett rejects “the Lochner bogeyman”

Writes David Bernstein:

As I pointed out earlier, Chief Justice Roberts’ dissent today ignores the last thirty years of scholarship and uses Lochner as a bogeyman to reject a due process challenge to states’ refusal to recognize same-sex marriage. Roberts’s description of Lochner is embarrassingly ahistorical.

By contrast, Texas Supreme Court Justice Don Willett’s concurring opinion today (joined by two other Justices) in Patel v. Texas Dept. of Licensing, blogged in detail by Eugene below, explicitly rejects what he calls “the Lochner bogeyman.”

In a footnote, he proceeds to provide a scholarly, accurate account of Lochnerand economic liberty in historical context, making Roberts’s opinion look even worse by contrast–especially because Willett’s opinion refutes several of Roberts’s claims.

Read Justice Willett’s learned footnote here.

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