6. The Freedom to Starve

The spectacular crash of laissez-faire jurisprudence (and how a free loaf of bread changed everything)

It’s 1908. Theodore Roosevelt occupies the White House. The first Model T Ford is rolling off assembly lines. And the Supreme Court is about to double down on its devotion to “liberty of contract.”

In Adair v. United States, the Court faced a federal law banning “yellow dog contracts”—those charming agreements where workers promised not to join unions if they wanted to keep feeding their families. Congress had banned them for railroad workers, reasoning that perhaps employees shouldn’t have to choose between basic rights and basic needs.

The Court was unpersuaded. In a decision that still makes labor historians wince, they struck down the law as an unconstitutional interference with freedom of contract. The author of this opinion? None other than Justice Harlan—the same justice who had passionately dissented in Lochner just three years earlier.

One can almost picture Harlan at his desk, quill in hand, trying to reconcile these positions in his mind. Perhaps he drew distinctions invisible to us now, or perhaps he simply surrendered to the overwhelming consensus of his brethren on the bench.

Seven years later in Coppage v. Kansas, the Court went further, invalidating a similar state law. The Court’s vision was clear: workers and employers stood as constitutional equals in the marketplace. They were simply two parties, freely negotiating.

It’s worth pausing to absorb the magnificent fiction of this worldview. On one side: U.S. Steel, with its army of lawyers, bottomless resources, and political connections. On the other: a single worker with hungry children at home. According to the Court, these were equal negotiating partners under the Constitution—like two chess grandmasters facing off on a perfectly level board.

The Court had constructed an alternate reality where power imbalances vanished by constitutional decree, where desperate need didn’t undermine meaningful choice, and where the invisible hand always guided market participants to optimal outcomes.

“The Constitution does not enact a fairy tale.” — Justice Holmes (whispering under his breath)

Women as Constitutional Anomalies

Just when the Court’s philosophy seemed predictable, along came 1908’s Muller v. Oregon. Here, the Court examined a state law limiting working hours for women in laundries.

Wait—hadn’t the justices just invalidated a nearly identical law for bakers in Lochner? What made this different?

Enter Louis Brandeis (not yet Justice Brandeis), who revolutionized legal advocacy with what became known as the “Brandeis Brief.” Rather than drowning the Court in abstract legal principles, Brandeis submerged them in sociological data about women’s health. A mere three pages discussed legal precedent. The other hundred-plus pages? A relentless barrage of charts, studies, and expert opinions about women’s physical limitations.

The Court—nine men in their sixties and seventies—embraced this approach wholeheartedly. They unanimously upheld the law, writing that “woman’s physical structure and maternal functions place her at a disadvantage in the struggle for subsistence.”

One can imagine the justices nodding solemnly in their chambers: Of course women need protection! Their delicate constitutions and sacred maternal duties must be preserved for the good of the race!

This wasn’t feminism—it was Victorian paternalism dressed in progressive clothing. Women were apparently too fragile for freedom of contract, unlike those hardy male bakers who could apparently endure endless hours at the oven without ill effect.

The Court had carved out a gender-based exception to Lochner—not because they recognized the exploitation of workers generally, but because they viewed women as inherently weaker beings requiring state protection.

The Gender Whiplash

Then came 1917. World War I was raging in Europe. The Russian Revolution erupted. And quietly, in the marble halls of the Supreme Court, something equally revolutionary happened: Bunting v. Oregon.

In this understated legal earthquake, the Court upheld maximum hours for all factory workers—men and women alike. For labor advocates, this felt like dawn breaking after a long night. The Court seemed to be awakening to a simple truth: all workers, regardless of gender, needed protection from exploitation.

Progressive reformers exchanged cautious smiles. Law journal articles pondered whether the Lochner era was ending. Union organizers dared to dream of a Court that recognized the harsh realities of industrial life.

Their optimism lasted exactly six years.

In 1923, the Court confronted Adkins v. Children’s Hospital, involving minimum wage laws for women workers in Washington, D.C. The case arrived at the Court like a pop quiz, testing whether the justices would follow the logic of Muller (where women needed special protection) or Bunting (where all workers deserved reasonable safeguards).

The Court chose door number three.

Justice Sutherland, a former Utah senator with impeccable conservative credentials, delivered an opinion that left legal observers with intellectual whiplash. Women, he declared, were now essentially equal to men in civil affairs. The “ancient inequality of the sexes, otherwise than physical” had nearly vanished. After all, the Nineteenth Amendment had granted women the vote—what more could they possibly need?

This newfound “equality” had arrived just in time to strip away wage protections.

The irony was exquisite. For decades, women had fought for equality, only to discover that in the hands of the Court, “equality” became a weapon against economic protection. Women had graduated from being too delicate for long hours to being too equal for fair wages—without ever passing through a stage where they enjoyed both.

It was like telling someone they were now too healthy for medicine, while they were still visibly ill.

The Great Collision: Economic Theory Meets Economic Reality

Then came an intervention more powerful than any legal argument: the Great Depression.

The Court’s economic fantasy world—where workers freely negotiated with employers on equal terms—crumbled when confronted with millions of Americans desperate for any job at any wage.

Imagine a Depression-era job negotiation:

“We’re offering 14-hour days, no safety protections, at half the previous wage.”

“I’ll take it. My children haven’t eaten in three days.”

This wasn’t “liberty of contract”—it was economic desperation meeting raw power.

The Depression exposed not just market failure but the failure of the Court’s constitutional vision. When factories that did everything “right” by free-market principles still failed, when banks considered “sound” collapsed overnight, when hardworking people who played by the rules found themselves destitute—the mythology of perfect markets became impossible to maintain.

The Court Faces Reality

Enter Leo Nebbia, an unassuming Rochester grocer who decided to offer a free loaf of bread with milk purchases during the depths of the Depression—a small act of Depression-era marketing that violated New York’s milk price control law.

In normal times, this case would have been constitutional target practice for the Lochner Court. Price controls? On milk? Interfering with the sacred right of grocers and customers to set whatever prices they wished? The old Court would have struck it down before their morning coffee got cold.

But these weren’t normal times. One in four Americans was unemployed. Former Wall Street titans were selling apples on street corners. The invisible hand of the market seemed to be waving goodbye.

When Nebbia v. New York reached the Court, something remarkable happened. Justice Owen Roberts (a conservative Hoover appointee expected to toe the line) suddenly went rogue. “Neither property rights nor contract rights are absolute,” he declared, sounding suspiciously like a New Dealer. “Equally fundamental is the public’s right to regulate in the common interest.”

This wasn’t a mere ruling; it was a constitutional revolution.

Picture Lochner’s marble temple cracking like an egg. What changed? Not the Constitution’s text—those words remained identical to 1905. What shifted was the Court’s confrontation with economic reality outside their chambers. The justices, like all Americans, had seen soup lines stretching for blocks.

Their about-face was more than pragmatism—it was a quiet surrender to reality itself. By upholding milk price controls, the Court wasn’t just rewriting constitutional doctrine; it was confessing that their once-sacred economic vision had crumbled under the weight of human hardship. Constitutional interpretation, they realized, isn’t a parlor game played in marble halls—it’s a living conversation with real lives, real struggles, and the stubborn, messy truths of the world outside.

Doctrinal takeaway:

The Court during the Lochner era prioritized individual economic liberty over collective social reform, unless there was a clear health/safety rationale.

Gender and health exceptions revealed the doctrine’s internal contradictions.

The end of this era came not through a clean doctrinal shift, but through a gradual erosion of confidence in the judiciary’s ability to draw principled lines in economic regulation cases.