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Thus the test Lochner and its progeny purported to apply is that which would theoretically control the same questions today: whether a plausible argument can be made that the legislative action furthers some permissible governmental goal.112 The trouble, of course, is they misapplied it. Roe, on the other hand, is quite explicit that the right to an abortion is a “fundamental" one, requiring not merely a "rational" defense for its inhibition but rather a "compelling" one.

A second difference between Lochner et al. and Roe has to do with the nature of the legislative judgments being second-guessed. In the main, the “refutations" tendered by the Lochner series were of two sorts. The first took the form of declarations that the goals in terms of which the legislatures' actions were defended were impermissible. Thus, for example, the equalization of unequal bargaining power and the strengthening of the labor movement are simply ends the legislature had no business pursuing, and consequently its actions cannot thereby be justified.113 The second form of "refutation" took the form not of denying the legitimacy of the goal relied on but rather of deny. ing the plausibility of the legislature's empirical judgment that its action would promote that goal.

In our judgment it is not possible in fact to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workman.114

There is no evidence in support of the thought that purchasers have been or are likely to be induced to take a nine and a half or a ten ounce loaf for a pound (16 ounce) loaf, or an eighteen and a half or a 19 ounce loaf for a pound and a half (24 ounce) loaf; and it is contrary to common experience and unreasonable to assume that there could be any danger of such deception.115

The Roe opinion's "refutation" of the legislative judgment that antiabortion statutes can be justified in terms of the protection of the fetus takes neither of these forms. The Court grants that protecting the fetus is an "important and legitimate" governmental goal,116 and of course

112. But cf. note 91 supra.

113. Coppage v. Kansas, 236 U.S. 1, 16-17, 17-18 (1915). See also Meyer v. Nebraska, 262 US. 390, 403 (1923); Adair v. United States, 208 U.S. 161, 174-75 (1908); Lochner v. New York, 198 U.S. 45, 57-58 (1905).

114. Lochner v. New York, 198 U.S. 45, 62 (1905). See also id. at 57, 58, 59, 64. 115. Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 517 (1924). See also Coppage v. Kansas, 236 U.S. 1, 15-16 (1915).

116. Note 8 supra.

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it does not deny that restricting abortion promotes it.117 What it does, instead, is simply announce that that goal is not important enough to sustain the restriction. There is little doubt that judgments of this sort were involved in Lochner et al.,118 but what the Court said in those cases was not that the legislature had incorrectly balanced two legiti mate but competing goals, but rather that the goal it had favored was impermissible or the legislation involved did not really promote it.119

Perhaps this is merely a rhetorical difference, but it could prove to be important. Lochner et al. were thoroughly disreputable decisions; but at least they did us the favor of sowing the seeds of their own destruction. To say that the equalization of bargaining power or the fostering of the labor movement is a goal outside the ambit of a “police power" broad enough to forbid all contracts the state legislature can reasonably regard "as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good"120 is to say something that is, in a word, wrong.121 And it is just as obvi

117. The Lochner approach to factual claims is, however, suggested by the Court's ready acceptance-by way of nullifying the state's health interest during the first trimester -of the data adduced by appellants and certain amici to the effect that abortions performed during the first trimester are safer than childbirth. 93 S. Ct. at 725. This is not in fact agreed to by all doctors-the data are of course severely limited-and the Court's view of the matter is plainly not the only one that is “rational" under the usual standards. See San Antonio Independent School Dist. v. Rodriguez, 41 U.S.L.W. 4407, 4420 (U.S. March 21, 1973); Eisenstadt v. Baird, 405 U.S. 488, 470 (1972) (Burger, C.J., dissenting): The actual hazards of introducing a particular foreign substance into the human body are frequently controverted, and I cannot believe the unanimity of expert opinion is a prerequisite to a State's exercise of its police power, no matter what the subject matter of the regulation. Even assuming no present dispute among medical authorities, we cannot ignore that it has become commonplace for a drug or food additive to be universally regarded as harmless on one day and to be condemned as perilous the next. It is inappropriate for this Court to overrule a legislative classification by relying on the present consensus among leading authorities. The commands of the Constitution cannot fluctuate with the shifting tides of scientific opinion. I suppose the Court's defense of its unusual reaction to the scientific data would be that the case is unusual, in that it involves a "fundamental" interest. It should be noted, however, that even a sure sense that abortion during the first trimester is safer than childbirth would serve only to blunt a state's claim that it is, for reasons relating to maternal health, entitled to proscribe abortion; it would not support the inference the Court draws, that regulations designed to make the abortion procedure safer during the first trimester are impermissible. See 93 S. Ct. at 782.

118. Cf. Meyer v. Nebraska, 262 U.S. 390 (1923); Adkins v. Children's Hospital, 261 U.S. 525, 546 (1923), Lochner v. New York, 198 U.S. 45, 53-54, 57 (1905).

119. And even those cases that interlaced such claims with indications of a balancing test, see note 118 supra, sowed the seeds of their own reversal. See text at notes 120-21 infra. A claim that X weighs more than Y will have little persuasive or precedential value if it is bracketed with an indefensible assertion that Y is nothing.

120. Adair v. United States, 208 U.S. 161, 172 (1908), quoted more fully at p. 932 supra. See also, e.g., Lochner v. New York, 198 U.S. 45, 54 (1905).

121. Wrong, that is, if one assigns to the words anything resembling their ordinary meanings. See, e.g., Daniel v. Family Insurance Co., 336 U.S. 220, 224 (1949). One can of course argue that states should also have governments of few and defined powers, that they should not be vested with broad authority to go after whatever they regard as evils. But the Federal Constitution imposes no such restraint, and according to the test accepted even at the time of Lochner such authority, at least as a matter of federal constitutional law, does exist.

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ously wrong to declare, for example, that restrictions on long working hours cannot reasonably be said to promote health and safety.122 Roe's "refutation" of the legislative judgment, on the other, is not obviously wrong, for the substitution of one nonrational judgment for another concerning the relative importance of a mother's opportunity to live the life she has planned and a fetus's opportunity to live at all, can be labeled neither wrong nor right. The problem with Roe is not so much that it bungles the question it sets itself,123 but rather that it sets itself a question the Constitution has not made the Court's business. It looks different from Lochner-it has the shape if not the substance of a judgment that is very much the Court's business, one vindicating an interest the Constitution marks as special-and it is for that reason perhaps more dangerous. Of course in a sense it is more candid than Lochner.124 But the employment of a higher standard of judicial review, no matter how candid the recognition that it is indeed higher, loses some of its admirability when it is accompanied by neither a coherent account of why such a standard is appropriate nor any indication of why it has not been satisfied.

V

I do wish "Wolf!" hadn't been cried so often. When I suggest to my students that Roe lacks even colorable support in the constitutional text, history, or any other appropriate source of constitutional doctrine, they tell me they've heard all that before. When I point out they haven't heard it before from me, I can't really blame them for smiling.

But at least crying "Wolf!" doesn't influence the wolves; crying "Lochner!" may. Of course the Warren Court was aggressive in enforcing its ideals of liberty and equality. But by and large, it attempted to defend its decisions in terms of inferences from values the Constitution marks as special.125 Its inferences were often controversial, but just as

122. It is possible, of course, that I am here time-bound, and that the wrongness of Lochner et al. is obvious only because a half century of commentary has made it so. While I cannot rebut this, I am inclined to doubt it. In those decisions the Court stated the applicable tests in language much the same as would be used today-language the dissents cogently demonstrated could not be reconciled with the results. That views with which one disagrees can be reasonable nonetheless was a concept hardly new to lawyers even in 1900.

123. But compare 93 S. Ct. at 732 with Doe v. Bolton, 93 S. Ct. 739 (1973). See also pp. 922-26 supra.

124. With respect to the Equal Protection Clause, by way of contrast, the Court has taken to claiming it is simply applying the traditional rationality standard, whether it is or not. For a more optimistic view of the development, see Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARv. L. Rev. 1 (1972).

125. See note 97 supra. The "footnote 4" argument suggested in note 85 supra responds not so much to any clear constitutional concern with equality for women (but

57-782 O-76-19

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often our profession's prominent criticism deigned not to address them on their terms and contented itself with assertions that the Court was indulging in sheer acts of will, ramming its personal preferences down the country's throat-that it was, in a word, Lochnering. One possible judicial response to this style of criticism would be to conclude that one might as well be hanged for a sheep as a goat: So long as you're going to be told, no matter what you say, that all you do is Lochner, you might as well Lochner. Another, perhaps more likely in a new appointee, might be to reason that since Lochnering has so long been standard procedure, “just one more" (in a good cause, of course) can hardly matter. Actual reactions, of course, are not likely to be this selfconscious, but the critical style of offhand dismissal may have taken its toll nonetheless.

Of course the Court has been aware that criticism of much that it has done has been widespread in academic as well as popular circles. But when it looks to the past decade's most prominent academic criticism, it will often find little there to distinguish it from the popular. Disagreements with the chain of inference by which the Court got from the Constitution to its result, if mentioned at all, have tended to be announced in the most conclusory terms, and the impression has often been left that the real quarrel of the Academy, like that of the laity, is with the results the Court has been reaching and perhaps with judicial "activism" in general.126 Naturally the Court is sensitive to criticism of this sort, but these are issues on which it will, when push comes to shove, trust its own judgment. (And it has no reason not to: Law professors do not agree on what results are "good," and even if they did, there is no reason to assume their judgment is any better on that issue than the Court's.) And academic criticism of the sort that might (because it should) have some effect-criticism suggesting misperceptions in the Court's reading of the value structure set forth in the document from which it derives its authority, or unjusti fiable inferences it has drawn from that value structure-has seemed

see U.S. CONST. amend. XIX) as to the unavoidable obligation to give "principled" content to the facially inscrutable Equal Protection Clause. See pp. 948-49 infra. Virtually everyone agrees that classifications by race were intended to be and should be tested by a higher than usual standard, and that at least some others-though the nature and length of the list are seriously disputed-are sufficiently "racelike" to merit comparable treatment. See, e.g., Graham v. Richardson, 403 U.S. 365 (1971). The problem thus becomes one of identifying those features of racial classifications that validly compel the deviation from the usual standard, and in turn those classifications that share those features.

126. See, e.g., Kurland, Foreword: “Equal in Origin and Equal in Title to the Legislative and Executive Branches of Government, 78 HARV. L. REV. 143, 144-45, 149, 163, 175 (1964).

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for a time somehow out of fashion, the voguish course being simply to dismiss the process by which a disfavored result was reached as Lochnering pure and simple. But if the critics cannot trouble themselves with such details, it is difficult to expect the Court to worry much about them either.

This tendency of commentators to substitute snappy dismissal for careful evaluation of the Court's constitutional inferences-and of course it is simply a tendency, never universally shared and hopefully on the wane-may include among its causes simple laziness, boredom and a natural reluctance to get out of step with the high-steppers. But in part it has also reflected a considered rejection of the view of constitutional adjudication from which my remarks have proceeded. There is a powerful body of opinion that would dismiss the call for substantive criticism-and its underlying assumption that some constitutional inferences are responsible while others are not-as naive. For, the theory goes, except as to the most trivial and least controversial questions (such as the length of a Senator's term), the Constitution speaks in the vaguest and most general terms; 127 the most its clauses can provide are "more or less suitable pegs on which judicial policy choices are hung." ."128 Thus anyone who suggests the Constitution can provide significant guidance for today's difficult questions either deludes himself or seeks to delude the Court. Essentially all the Court can do is honor the value preferences it sees fit, and it should be graded according to the judgment and skill with which it does so.129

One version of this view appears to be held by President Nixon. It is true that in announcing the appointment of Justices Powell and Rehnquist, he described a “judicial conservative”—his kind of Justice -as one who does not "twist or bend the Constitution in order to perpetuate his personal political and social views."180 But the example he then gave bore witness that he was not so "naive" after all.

As a judicial conservative, I believe some court decisions have gone too far in the past in weakening the peace forces as against the criminal forces in our society. . . . [T]he peace forces must

127. See, e.g., A. BICKEL, supra note 89, at 84-92; A. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 177 (1970); Mendelson, On the Meaning of the First Amendment: Absolutes in the Balance, 50 CALIF. L. REV. 821 (1962).

128. Linde, supra note 97, at 254.

129. The Court will continue to play the role of the omniscient and strive toward omnipotence. And the law reviews will continue to play the game of evaluating the Court's work in light of the fictions of the law, legal reasoning, and legal history rather than deal with the realities of politics and statesmanship.

Kurland, supra note 126, at 175.

130. 7 Weekly Comp. of Presidential Documents 1431 (Oct. 25, 1971).