Supreme Court

Libertarian Victories at the Supreme Court

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In response to a challenge from law professor and blogger Brad Smith, George Mason University legal scholar (and Reason contributor) Ilya Somin nominates a few of his candidates for "best Supreme Court decisions from a libertarian point of view":

Given my criteria, the Peonage Cases of the early 1900s surely rank high, as they enabled numerous southern blacks to escape a system of forced labor and did so at a time when Jim Crow racism was at its height, and the political branches of government showed little willingness to protect black rights. Also worthy Buchanan v. Warley (1917), which struck down racially based zoning, and helped prevent US state-imposed segregation from becoming as bad as that in South Africa under the Group Areas Act. Although it did not lead to much actual racial integration, Buchanan enabled blacks to move into many areas that would otherwise have been closed to them….

I also agree with Brad's nomination of Schechter Poultry v. United States (1935) , which invalidated the National Industrial Recovery Act, the most sweeping effort at economic central planning in all of American history. Enacted in 1933, the NRA cartelized nearly the entire nonagricultural economy; by raising prices and wages above market-clearing levels, it also increased unemployment and lowered industrial production at a time when both were already reeling from the Great Depression.

I'd second all of those, particularly Buchanan, which was argued and won by the great libertarian lawyer Moorfield Storey. And I'd add Lochner v. New York (1905), which upheld the right to liberty of contract, and District of Columbia v. Heller, which finally recognized that the Second Amendment secures an individual right to keep and bear arms. Hopefully by the end of the Court's current term we can add McDonald v. Chicago to the list as well.

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  1. Pierce v Society of Sisters?

  2. Hustler Magazine v. Falwell

  3. “Enacted in 1933, the NRA cartelized nearly the entire nonagricultural economy”

    Was it the NRA or the NIRA that Ilya wanted to reference?

    1. NRA
      Blue eagle not guns.

  4. You forgot Plessy vs. Ferguson.

    1. Plessy wasn’t a victory for liber… Oh ho ho, I see what you did there. It’s funny cause it’s true, we’re all racists. Ha ha ha libertarians are racists. Don’t tell Obama! ROFL

  5. Murray v. Curlett

  6. Bush et al. v. Gore et al.

    1. ?

      That was more of an anti-libertarian case. No matter who won, liberty lost.

  7. Manchester United v. Wolfsburg

  8. The education cases can only be so libertarian. No matter how less fucked they left the system, they left the system in place. Public education is just not libertarian friendly.

  9. Bush et al. v. Gore et al.

    Oh, I don’t know. We wouldn’t have had the Iraq War, and a Republican might have defeated Gore in 2004, so we probably wouldn’t have Obama right now. Gore would have been dealing with a GOP Congress, so it’s not likely any of his whackadoodle environmental proposals would have gotten very far.

    1. Remember that Gore was running as being more interventionist than Bush. We’re like to have ended up there or somewhere worse. Among the Democratic establishment, Iraq War skepticism was mostly in hindsight.

      1. Yeah, remember it was Bush that ran on the “humble foreign policy.” Fool me once.

        And I wonder what would have happened if the phone call asking for a bailout for Enron had been answered at a Gore White House. Especially since Bob Rubin would have been there instead of making the call.

  10. Lawrence v. Texas may have much more than a modest impact, according to Randy Barnett.

  11. Loving v. Virginia.

    1. Good call.

      Can’t believe I forgot that one.

      +++10

  12. West Virginia State Board of Education v. Barnette

  13. Another vote for Loving v. Virginia. And Heller of course.

    I’d also suggest U.S. v. Lopez (1995), the first case in 50 years to actually try to rein back (however slightly) what Congress can do under the Commerce Clause.

    A sentimental favorite is Santa Clara County v. Southern Pacific RR (1886), which stands for the proposition that corporations are persons for purposes of the Due Process Clause of the Fourteenth Amendment. It doesn’t have much bite nowadays, but lefties love to cite it as the source of all their woes. Heh heh heh.

  14. And while we’re at it, let’s not forget Cohen v. California (1971), holding that you have a constitutional right to wear a jacket that says “Fuck the Draft,” even in a courthouse.

  15. Heller would have probably went the other way with Gore too, and I don’t even want to think of all the “For The Childern” nanny state bullshit we would have gotten with Tipper and Lieberman there. The 2000 election was easily the worse in my lifetime.

  16. Alien vs. Predator

    1. Enough about Bush v. Gore already!

  17. Buck v. Bell.

    OK, pretty much the opposite of libertarian (upholding state-forced sterilization). But come one, ya gotta give Ollie W. Holmes cred for one of the best lines ever written in any SCOTUS opinion:

    Three generations of imbeciles are enough.

    I love that quote.

    1. Can we apply that principle to Joe Kennedy’s great-grandchildren seeking public office?

  18. From my POV , a ruling like Lawrence v. Texas is the antithesis of Libertarianism.

    To me the most fundamental princple of being sovereign is being vested with the authority to contribute to the formulation of law.

    As people we have broad authority to enact laws through mechanisms established by our States’ Constitutions in almost any area that we deem.

    In that case, the Federal Govt has diminished our freedom and the principle of Self Rule.

  19. Joe vs. the Volcano

  20. light vs. rule

    1. They sure do!

  21. From my POV , a ruling like Lawrence v. Texas is the antithesis of Libertarianism.

    Yeah Vince, throwing people in prison for consensual activities is so libertarian.

    1. unintended consequences, friend.

      I’m sure the judges who introduced the doctrine of dual sovereignty to prevent corrupt Southern state courts from acquitting racial murderers thought they were advancing the cause of liberty. They were right in that particular case; but they were wrong over the long run.

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