Individual Rights and the Supreme Court

Damon W. Root | July 1, 2008

George Mason's David Bernstein wrote a great article for the Cato Institute last week making the necessary point that the Supreme Court's liberals aren't necessarily its most reliable defenders of individual rights. As Bernstein notes, the dissents in D.C. v. Heller presented "the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides." As he notes, there's also liberal malfeasance on cases dealing with election-related speech, eminent domain abuse, racial classifications, and "hate speech" to keep in mind.

The only thing I would add is that the Court's conservatives aren't exactly eager to take up the slack. As Radley Balko pointed out, Chief Justice John Roberts and Justice Samuel Alito are

judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president's powers are unlimited, absolute, and unchecked by either Congress or the courts. That isn't an exaggeration.

Justice Antonin Scalia, of course, voted the wrong way in Gonzales v. Raich, siding with the majority against California's medical marijuana law. And in his ugly Boumediene v. Bush dissent, Scalia viciously asserted that recognizing habeas corpus for enemy combatants held at Guantanamo Bay "will almost certainly cause more Americans to be killed."

Perhaps it goes without saying, but wouldn't a few genuine libertarians be a nice improvement?

Comments

Elemenope|7.1.08 @ 6:30PM|#

Libertarians don't get appointed to the bench by non-Libertarians. By and large. I don't know how one accounts for Napolitano and Kozinski, but they are far, far outliers to be sure.

I imagine that if we were able to get some freedom-lovers into *elected* office, the appointed ones would follow fairly close behind.

Someone Who Doesn\'t Want to L|7.1.08 @ 6:52PM|#

If I recall didn't we have a chance at one back in the '80s? Ginsburg I (Douglas, otherwise known as Captain Toke) has been called, if I remember correctly, the most libertarian judge that any president (Reagan, in this case) ever attempted to appoint. Reagan also appointed Kozinski, I believe.

J|7.1.08 @ 6:54PM|#

I am always hoping one will get appointed before someones re-election attempt to appear to transcend party.

JMR|7.1.08 @ 6:59PM|#

Now that the blogosphere has gone ape$hit over AK's porn/humor stash, his chances are about 0, and he was wrong on Kelo anyway. Thank God for the Thomas dissent in Raisch -- it was good to see ONE of them making sense of the 10th & federalism. These days, except that McSame's a horse's ass, our best chances are probably either Napolitano or Posner.
JMR

Andrew|7.1.08 @ 7:01PM|#

Elemnope:
"By and large. I don't know how one accounts for Napolitano and Kozinski, but they are far, far outliers to be sure."

No idea about Kozinski (whose chances for promotion seem limited, at best), but Andrew Napolitano *was* an uber-conservative, according to his book, "Constitutional Chaos":

"When I arrived on the bench, I had impeccable conservative Republican law and order credentials. When I left eigh years later, I was a born-again individualist, after witnessing first hand how the criminal justice system works to subvert and shred the Constitution."

Colin|7.1.08 @ 7:07PM|#

A few genuine libertarians?

How about one?

Elemenope|7.1.08 @ 7:33PM|#

Andrew --

Well, that explains him, anyway.

JMR --

I wouldn't go so far as to call Posner a "libertarian". His ideological affections are *similar*, to be sure, but I think he comes down more solidly on the "Law and Economics" front, perhaps as a economic libertarian, but a decidedly mixed bag/consequentialist on personal freedoms.

|7.1.08 @ 7:38PM|#

"When I arrived on the bench, I had impeccable conservative Republican law and order credentials. When I left eight years later, I was a born-again individualist, after witnessing first hand how the criminal justice system works to subvert and shred the Constitution." -- attributed to Andrew Napolitano

With minor adjustments, this sounds like what Bob Barr is saying about his epiphany and conversion to libertarianism while serving in Congress. I paraphrase: "Yeah, I voted for some really authoritarian things and then got to see how the grants of power were abused, so now I realize that nobody should have that power."

The quandry for the public, of course: Are such officials now trustworthy because they are "sadder but wiser," or were they stupid or venal then and merely feigning reform or improvement now?

To believe what Andrew Napolitano and Bob Barr say now, you have to believe they have 1) brains, and 2) consciences. I submit that the key thing for Barr supporters to prove and the candidate himself to demonstrate is that he has a fully functioning conscience and wants earnestly to fix what he helped to break. It'll soon become apparent whether he has the necessary brains to have a chance at success if we give him a shot. But conscience is harder to verify.

I don't know much about Napolitano; I've seen him on TV a few times and read the odd column or speech transcript. Do people who have known or observed him over the years think he has a strongly developed sense of conscience?

Elemenope|7.1.08 @ 7:56PM|#

I don't know much about Napolitano; I've seen him on TV a few times and read the odd column or speech transcript. Do people who have known or observed him over the years think he has a strongly developed sense of conscience?

Despite his militant pro-lifeyness, he's been very consistent and very vocal about the erosions of freedom in the US and does strike one as a considerate and passionate fighter for those issues.

From what I can tell.

|7.1.08 @ 8:15PM|#

What of the rumor that Cass Sunstein is in line for an appointment if Obama gets elected? Is she a libertarian?

|7.1.08 @ 8:17PM|#

That should say "he."

SIV|7.1.08 @ 8:25PM|#

Justice Antonin Scalia, of course, voted the wrong way in Gonzales v. Raich, siding with the majority against California's medical marijuana law.

You could replace "the majority" with "the liberals".

Clarence Thomas is the most libertarian Justice to serve on the court in my lifetime.
I still want to see Janice Rogers Brown nominated for the confirmation battle alone.

Alice Bowie|7.1.08 @ 8:47PM|#

We need TWO LIBERAL JUDGES...At least Two...

At this point, we might as well simply ASK KENNEDY and ignore the rest of the court.

It's a real sad day that Justice Anthony Kennedy is the Middle-Ground...I'm so Pissed with Sandra Day O'Connor.

Tom Pain|7.1.08 @ 10:52PM|#

Clarence Thomas is the most libertarian Justice to serve on the court in my lifetime.

Then you're a fucking idiot. Thomas has nothing but disdain for privacy rights.

Nat|7.1.08 @ 11:33PM|#

I don't know much about Napolitano; I've seen him on TV a few times and read the odd column or speech transcript. Do people who have known or observed him over the years think he has a strongly developed sense of conscience?

Search the Reason archives - there's a superb interview of him from 2005. He almost sounds bitter when talking about the failings of the American justice system and how the government abuses individual rights.

Warmongering Lunatic|7.2.08 @ 1:35AM|#

Tom Pain --

"Most" is a comparative, not an absolute. If only a "fucking idiot" could claim that Thomas is the most libertarian Justice in recent years, then you should be able to name, oh, six Justices in the last thirty years who were more libertarian, right?

|7.2.08 @ 8:31AM|#

"wouldn't a few genuine libertarians be a nice improvement"

Genuine? You trying to start a fight?

|7.2.08 @ 9:48AM|#

wouldn't a few genuine libertarians be a nice improvement?

yes

|7.2.08 @ 9:50AM|#

Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president's powers are unlimited, absolute, and unchecked by either Congress or the courts.

That's not what the "unitary executive" means. The theory of the unitary executive is that the Constitution vests all executive powers in the president, which means that all officers and employees in the executive branch must be subject to the supervision and direction of the president. Thus, according to this theory, any attempt by Congress to give executive-branch officials the authority to take action contrary to presidential direction is a violation of article II, section 1 of the Constitution. In its most robust form, the theory holds that all executive branch officials must be appointed by the president or by direct or indirect presidential employees, and must be subject to removal by the president or by presidential appointees. This is the view taken by Justice Scalia in his dissent in Morrison v. Olson, 487 U.S. 654 (1988). (Oh, yes, under this theory, "independent" agencies such as the FTC are probably also unconstitutional. Supporters of the unitary executive praise Chief Justice Taft's decision for the Court in Myers V. United States, 272 U.S. 52 (1926), but find Justice Sutherland's position in Humphrey's Executor v. United States, 295 U.S. 602 (1935), to be flawed. The Reagan administration was full of people who tended to believe that Humphrey's Executor was wrongly decided, but they never got the Gipper to press the point.

james j. bingis|7.2.08 @ 10:02AM|#

What I find facinatingly disturbing is the liberals mantra of "local" rule on guns. Breyer stated (paraphrasing) that a municipality can legally ban guns if it wanted to and even more disturbing "there is no right in the constitution to shoot the burglar."
He is wrong on so many levels.

First, Let's have a hypocrite test. How many think the same "logic" (local denials of rts are acceptable) will be used by breyer when deciding bans on Gay Marriage and Abortion?

Second, I am always astonished how these 9 jokers always ignore the 9th and 10th amendments when reaching any decision on our rights.

|7.2.08 @ 10:21AM|#

Janice Rogers Brown is an outside possibility.

Zeb|7.2.08 @ 2:20PM|#

Can't we all agree that all of the current supreme court justices are mind-bogglingly wrong on at least one issue and that whoever gets elected as president, we are in store for some pretty bad nominations?