Progressive legal theorists exploited this doctrinal disjunction to argue that the
justices» opposition to economic reforms was fundamentally ideological and thus illegitimate: «If the public's evolving
attitude towards liquor and lotteries had been sufficient to justify a rethinking of economic rights and federalism constraints, the argument went, then what else but the subjective policy preferences of the
justices themselves could explain the Court's stubborn resistance to other, broadly popular forms of «
social» legislation?»