Since Robert Bork, Edwin Meese, Antonin Scalia and their lieutenants founded modern conservative jurisprudence 30 years ago, its core watchword has remained invariant: abhorrence for “activist” judges who “legislate from the bench.” To showcase their hostility to activism on the right as well as the left, court-focused conservatives have repeatedly denounced the 1905 U.S. Supreme Court decision Lochner v. New York. Lochner launched and has come to symbolize the notoriously anti-regulatory activism of the first third of the 20th century; the case held that maximum-hours regulation violated employers’ and employees’ “freedom of contract,” a “right” that the five-justice majority divined in the Fifth and 14th amendments’ ban on deprivation of liberty without due process of law. Bork called the ruling an “abomination.” Meese agreed that the “activist Court of the Lochner era was as illegitimate as the Warren Court.” More recently, Chief Justice John Roberts Jr., at his 2005 confirmation hearing, said, “Reading that opinion, it’s quite clear that they’re not interpreting the law, they’re making the law.”

That was then. But maybe not now. Within the next year or two, we’ll find out. By then, the Supreme Court should have decided one or more of the pending challenges to the “minimum coverage provision” or “individual mandate” in the new health reform law, which requires most Americans who can afford it to carry health insurance. Roberts and his four fellow Republican appointees cannot strike down the mandate without exhuming Lochner and the doctrinal apparatus deployed a century ago to abort the modern American regulatory state.

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