Writing at The New Republic, Simon Lazarus of the progressive Constitutional Accountability Center examines “the most obvious, and potentially seismic, current influence on the Supreme Court’s conservative bloc. This is the recent surge of libertarianism among conservative academics, advocates, politicians and, of course, voters.” As Lazarus tells it, while progressives may have some reason to cheer this growing libertarian presence on the legal stage—especially when it comes to issues such as gay rights, where libertarian legal arguments helped shape the Court’s recent decision striking down Section 3 of the Defense of Marriage Act—there are reasons to be wary as well. He writes:
rising libertarian influence is not all good news for progressives. On the contrary, the most consequential impact could be the parallel surge of support, among conservatives, for libertarian ambitions to dismantle or cripple landmarks like the environmental laws, the Affordable Care Act, and Medicaid. This is new. Until very recently, mainstream judicial conservatives, like Robert Bork, Antonin Scalia, and even Edwin Meese, had long scorned libertarian demands to roll back the New Deal-Great Society state. They branded the early 20th century Supreme Court’s anti-regulatory activism as no less “illegitimate” than the Warren-Burger Court’s alleged “liberal activist” excesses.
Lazarus points to last year’s narrow decision upholding Obamacare as proof of the libertarian menace, worrying that next time around the Supreme Court may not prove so deferential to federal regulation.
He has cause for alarm. Libertarian legal arguments have been gaining traction over the past three decades and that process shows no signs of slowing down. The Obama administration’s recent Supreme Court losing streak in property rights cases suggests just one of the possible forms this growing influence may take. To be sure, this does not mean we’ll see the New Deal dismantled in the immediate future, but it does point to the real possibility of more judicially-enforced limits on government power, as well as greater legal protections for property rights and economic liberties, two areas where the post-New Deal courts have shown far too little interest in securing rights and far too great a desire to defer to the wishes of lawmakers.