Who Should Reign Supreme?

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

From the July 2005 issue

(Page 3 of 6)

Nominees for the Court: Of those mentioned as likely picks, I like Judge Alex Kozinski of the 9th Circuit and Judge J. Michael Luttig of the 4th Circuit. I have appeared in front of both of them on several occasions, and both are independent-minded conservatives who are not afraid to put a check on abusive government behavior and power. Kozinski is even brave enough to rule against abusive judicial conduct in disciplinary proceedings. In a case I had before Luttig, he was highly critical of the Internal Revenue Service's abusive tactics.

While he hasn't been mentioned as a possible nominee, I also like Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia, who presided over many of my cases against the Clinton administration. He is an iconoclast who has a healthy skepticism of government power and, like Kozinski and Luttig, is sensitive to the needs of the common man, a trait sometimes lacking in conservatives. Lamberth was the judge who allowed me to take discovery in a simple FOIA case against the Clinton Commerce Department. It was this case that exposed and triggered the campaign finance/Chinagate scandal.

Favorite sitting Supreme Court justice: I really do not have one, but of those on the bench I would say Justice Clarence Thomas, who is also a friend. He can sometimes be overly simplistic, � la Scalia, in his reading of the Constitution, but he does have a fear of government power. This was no doubt reinforced by his own experience.

All-time favorite Supreme Court justice: Chief Justice John Marshall is my favorite, and not just because he was chosen by my favorite founding father, John Adams, who believed that without ethics and morality there will be no lasting liberty. While Marshall was a Federalist and I believe in "states' rights," his affirmation of federal power as the supreme law of the land was important in the early days of our nation. And Marshall believed, as I do--and this is not typically conservative--that the judiciary is perhaps the most important branch of government. Indeed, this is why I founded Judicial Watch: to not only watch the judiciary, because it is so important, but to use it to guard against the tyranny of the other two branches. Judges are our most important public servants, and they can use their power wisely or, as is often the case, unwisely. But they are necessary, within constitutional limits, to serve as a check on the abuse of government and tyranny among ourselves.

Siva Vaidhyanathan

Vaidhyanathan is an assistant professor of culture and communication at New York University and the author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (2001) and The Anarchist in the Library: How the Clash between Freedom and Control is Hacking the Real World and Crashing the System (2004).

Nominees for the Court: Bill Clinton. If only he had not been disbarred! The Court needs a persuasive politician on it right now. In the tradition of John Marshall, Hugo Black, and Earl Warren, Clinton could steer disparate justices toward a common goal. He is a master compromiser and a true moderate in a country that seems to lack them. Plus, the Supreme Court is one of the last places in American life where being a polymath pays off. No one is a quicker study than Clinton.

Cass Sunstein. Sunstein is an accomplished author and professor at the University of Chicago School of Law. He is a true moderate with a reasonable (i.e., not fundamentalist) view of free speech and a healthy respect for the Necessary and Proper Clause of the Constitution. He is brilliant and persuasive.

Kathleen Sullivan. The former dean of Stanford Law School is a master litigator and one of the world's leading experts on civil liberties. She would bring a fresh perspective at a time when civil liberties are at best taken for granted, at worst under concerted attack. She is also well-versed in technology and intellectual property issues, having argued such cases in federal court and presided over the premier law school in Silicon Valley, if not the world.

Favorite sitting Supreme Court justice: John Paul Stevens. I'm very nostalgic about the Court of the '70s, and he's the one who triggers the most nostalgia. He's got great institutional wisdom, a deep memory, and a sense of the Court's place in the world. He's also been steady and consistent in his jurisprudential vision. I've always enjoyed reading his opinions.

All-time favorite Supreme Court justice: Louis Brandeis. He did the most to move the court into the modern age and helped make it flexible and forward looking. You can't find a stronger civil libertarian. And he had a good style of forging consensus, but he wasn't afraid to be a strong dissenter either. Much of the most interesting reading to come out of the 20th-century Court is Brandeis dissents.

Randy Barnett

Barnett is a professor of law at Boston University and the author, most recently, of Restoring the Lost Constitution (2003). He represented the respondents in Ashcroft v. Raich before the Supreme Court this term.

All-time favorite Supreme Court justice: Most famous Supreme Court opinions either stretched clauses beyond their original meaning to authorize governmental power or interpreted textual barriers out of existence. Given this history, I have no Supreme Court heroes. But Justice Rufus Peckham (1838�1909) authored the opinion in Lochner v. New York (1905), one of the few decisions in which the Supreme Court exhibited skepticism about a claim of governmental power and protected a liberty not included in the Bill of Rights. By placing the burden on the state to justify its restriction on the liberty of contract in the form of a maximum hours law for bake shop employees (but not owners), Peckham in effect employed a presumption of liberty, which I think should be used to protect all liberties. On the other hand, Peckham silently joined the 8-to-1 majority in Plessy v. Ferguson (1896). As I said, I have no Supreme Court heroes.

Chip Mellor