Who Should Reign Supreme?

Reason asks libertarian legal experts: Who are your favorites--past, present, and future--on the nation's highest court?

During the next three years, George W. Bush will certainly nominate one and perhaps as many as three new Supreme Court justices. Any one of those nominations could set off a battle comparable to the political donnybrooks over Clarence Thomas and Robert Bork; just one could be enough to shift the balance of power on the bench.

With senatorial filibustering over lower-court appointees filling the headlines as of print time, we'll leave the question of what will happen for another day. For our special courts issue, we asked several legal experts whom they'd like to see on the court. We also asked whom they liked best on the current court and who was their favorite Supreme Court justice of all time. Our participants range from the far left to the hard right, but they're all libertarians in whole or in part.

A lawyerly bunch, some respondents chose not to answer every question (we're not sure why, but those with cases pending in front of the Court seemed especially reluctant to name a current fave), but they all gave us interesting--and sometimes radically different--responses.

Andrew Napolitano

Napolitano, the youngest life-tenured Superior Court judge in New Jersey history, is a senior judicial analyst for Fox News and the author of Constitutional Chaos (2004).

Nominees for the Court: Judge Alex Kozinski, U.S. Court of Appeals for the 9th Circuit; Robert George, McCormick Professor of Jurisprudence, Princeton University; Ron Paul, U.S. House of Representatives (R-Texas).

All three of my nominees share some truly invaluable traits. Each has successfully triumphed over a form of tyranny: Kozinski escaped from Eastern European communism, George neutralized a liberal Princeton faculty, and Paul has resisted the Republican House leadership. Each believes the Constitution means what it says; that is, that the federal government is legally limited to the 18 specific powers given to it in the Constitution, and that the rights enumerated in the Bill of Rights are in fact guaranteed and cannot be taken away by Congress or the executive branch. They all hold that life begins at conception. They also believe that our rights are pre-political, hence natural, hence they come from God, not the government, not the consent of the governed, and not from any other source. Finally, and just as important as all of the above, each of my nominees possesses great personal courage.

Favorite sitting Supreme Court justice: Antonin Scalia, for writing in Printz v. United States (1997) that the Constitution confers upon the Congress "not all governmental powers, but only discrete, enumerated ones."

All-time favorite Supreme Court justice: George Sutherland, for writing in his dissent in Home Bldg. & Loan v. Blaisdell (1934) that "whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned."

Nadine Strossen

Strossen is a professor at New York Law School and the president of the American Civil Liberties Union.

Favorite sitting Supreme Court justice: David H. Souter. His well-researched, thoughtful opinions reflect the kind of classic conservatism that respects individual freedom and restricts government power to undermine it. His opinions also make clear that he is conscientiously engaging in intellectually honest, rigorous analysis, applying governing precedents and principles to the particular facts, rather than providing post hoc rationalizations for conclusions that result from personal policy preferences. Consistent with this open-minded approach, he has candidly acknowledged in an opinion that, upon further research and reflection, he realized that one of his votes in a prior case was wrong. (This was 2000's City of Erie v. Pap's AM, in which he confessed error regarding his prior vote in Barnes v. Glen Theatres [1991]. Both had to do with the question of whether nude dancing was protected as free expression under the First Amendment. In Pap's, he said he hadn't learned anything about nude dancing since Barnes, but he'd learned a lot about the First Amendment since then.) Accordingly, his opinions demonstrate how important it is to maintain the independence of the federal judiciary, relatively insulated from majoritarian political pressures.

All-time favorite Supreme Court justice: Louis Brandeis. His inspiring opinions concerning free speech and privacy continue to provide the most eloquent, enduring justifications not only for these particular freedoms but also for civil liberties in general. The rationales of these opinions apply to particular factual circumstances he could not have foreseen, since the opinions recognize in general that there will be future technological developments and threats to national security that will be invoked as purported justifications for restraining fundamental rights.

Richard Epstein

Epstein is a professor of law at the University of Chicago and author, most recently, of Skepticism and Freedom: A Modern Case for Classical Liberalism (2003).

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