Libertarians Like Rehnquist

A review of the U.S. Supreme Court's last term in today's New York Times quotes Walter Dellinger, acting solicitor general in the Clinton administration, who says "this term suggested a split between two kinds of conservative Republicans."

Justices Kennedy and O'Connor "share the sensibilities of corporate Republicans, who often have a bit of a libertarian streak in them," he said, while on social issues, "Scalia and Thomas represent the Moral Majority strain, which is vocal but not necessarily dominant."

Chief Justice Rehnquist, Mr. Dellinger said, often occupies a middle position between the two groups.

By "libertarian," Dellinger seems to mean socially tolerant, since "corporate Republicans" are, if anything, less libertarian on economic issues than GOP members further to the right. But it's hard to imagine how Rehnquist, a majoritarian who is more deferential to government than any other member of the Court, could be seen as more libertarian than Scalia and Thomas in any sense of the word. In cases involving freedom of speech, property rights, and federalism, the latter two justices have repeatedly voted to limit government power.

Then, too, Dellinger seems to assume that justices have (or should have) no compunction about reading their political preferences into the Constitution. In Lawrence v. Texas, Thomas said he personally considered the sodomy ban "uncommonly silly" and would vote to repeal it if he were a legislator. But not every bad law is unconstitutional. The maddeningly vague, unmoored reasoning of the majority's opinion in Lawrence suggests the importance of this distinction, especially since the evolving standards that the Court uses to reinterpret the Constitution aren't always friendly to liberty.