The panic at the Times over the Supreme Court reminds us of the incredulity of Marty McFly as the DeLorean Time Machine hurtles toward him in “Back to the Future.” He can’t quite comprehend that by going back to 1955 he can save his parents’ marriage when it’s still in the future. Just the way the editors of the Times can’t comprehend that the Supreme Court can save 21st-Century America by going back to the Lochner Era.

That draws its name from 1905 a Supreme Court decision in favor of an immigrant baker, Joseph Lochner of Utica, New York. Lochner had been convicted of the crime of employing a baker for more than 60 hours a week. That violated New York’s Bakeshop Act, which had been enacted in 1895. The Supreme Court, though, acquitted Lochner in a decision protecting the right, under the 14th Amendment, of the freedom of contract.

It gave the Constitution’s blessing to an age of laissez faire law toward business — the aforementioned Lochner Era. It lasted until 1937. Then the FDR court veered leftward. In West Coast Hotel Co. v. Parrish, it okayed state minimum wage laws. Goodbye to freedom of contract. Hello to a new era of federal and state regulation of business. It seemed nothing could stop it until last month, when the Nine declared unconstitutional the EPA’s campaign to regulate the climate.

This has thrown the Times — and other Democrats — into a terrible swivet. The Supreme Court, the Times fretted, “will transform American life,” and in ways for which the Times lacks enthusiasm. It calls the just-ended term the court’s “most conservative since 1931.” It warns the Nine may revive, in Lochner, a precedent that it says is “reviled.” The Times neglects — or purposely refuses — to note that, back in 1905, the paper  endorsed Lochner.

“It is most gratifying to observe,” said the Times back then, “that the Supreme Court does not allow of the sanctity of any contracts which may have been made between the demagogues in the Legislature and the ignoramuses among the labor leaders bringing to naught their combined machinations.” So either the Times has gone over to what it regards as the ignoramuses or it just forgot to check the clips.

In any event the Times now says the Lochner ruling “is imprinted on the mind of nearly every law student as an example of a bad decision,” equating it with cases like “Dred Scott and Plessy v. Ferguson.” The Times blames the precedent for “severely curtailing the government’s ability to regulate business and the economy.” That’s a heavy burden to pin on a case about a “journeyman baker,” who wanted to work more than ten hours a day.

Even today the Times is forced to acknowledge the logic behind Lochner, based on the tradition of the freedom of contract in common law. Justice Alito’s opinion reversing Roe v. Wade, the Times notes, says “rights not explicitly mentioned in the Constitution” need to be “deeply rooted in this Nation’s history and tradition.” The Times concedes “unlike a right to abortion, freedom of contract is widely believed to meet that definition.” 

We’re not as confident as the Times that the new conservative majority on the Supreme Court is going to go back and reopen Lochner. We are confident, though, that if they do reopen Lochner, it would portend well for events in the future, enabling us to roll back regulations and liberate Americans to make their own decisions. It’s one of the wonderful things about time travel, as Marty McFly learned in his own heroic way. And his parents had a happier life.