Regardless of Lochner's basis, the fact remains that the Meyer line of cases began to diverge from any explicit concern with Class legislation or equality.
Carolene Products (53) transformed Meyer, Pierce and similar cases (54) into cases that stood for the proposition that "similar considerations [requiring more stringent judicial review than normal] enter into the review of statutes directed at particular religious or national or racial minorities." (55) Bernstein is more than grudging here: referring to footnote four's treatment of the Meyer line of cases, he writes as follows: "The Court creatively reinterpreted--that is, intentionally misinterpreted--Meyer and Pierce as decisions invalidating laws because the laws discriminated against minorities" (p.
Bernstein does not develop the argument in Rehabilitating Lochner, but in other scholarship he has argued that the Meyer line of cases and others (most notably Adkins v.
Bernstein has argued that Bolling would have been a more coherent opinion had the Court forthrightly relied on the Meyer line of cases to recognize a liberty to attend a non-segregated public school, and then, following Lochner-era analysis, had rejected racially discriminatory justifications for the law.
Thus, it is not self-evident that Justice Stone's "creative[] misinterpret[ation]" of the Meyer line of cases was illegitimate, as suggested by Bernstein's dismissal of that move.
As explained above, he draws a clear line connecting Lochner, the Meyer line of cases and the Court's ultimate protection of free expression and criminal procedure rights.
