Antonin Scalia

Top 10 Libertarian Supreme Court Decisions

Sometimes the High Court gets it right.

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It's no secret the U.S. Supreme Court has often been a disappointment to libertarians. Whether the justices are giving the green light to eminent domain abuse, securing absolute immunity for dissolute prosecutors, or rubber-stamping the latest power grab from Washington, the Court routinely fails to live up to James Madison's famous description of the judicial branch as "an impenetrable bulwark against every assumption of power in the legislative or executive."

But that doesn't mean the High Court always gets it wrong. Here, in no particular order, are 10 Supreme Court decisions still standing where the Court put individual liberty and limited government first.

10. Pierce v. Society of Sisters (1925)

In 1922 the Ku Klux Klan and other anti-Catholic groups spearheaded an Oregon initiative designed to eliminate the state's private schools, many of which were run by Catholic charities. Under the terms of the Compulsory Education Act, all children between the ages of eight and 16 were required to attend "a public school for the period of time a public school shall be held during the current year." The Society of Sisters, an Oregon corporation organized in 1880 to care for orphans and carry out various educational purposes, challenged the law in court, arguing that it violated the Due Process Clause of the 14th Amendment, which forbids the states from depriving "any person of life, liberty, or property, without due process of law."

The Supreme Court agreed. "The child is not the mere creature of the state," declared Justice James McReynolds in a unanimous decision rejecting "any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." Thus the right of parents and guardians to send their children to private school was secured.

Next: Antonin Scalia vs. Big Brother.

9. Kyllo v. United States (2001)

The Fourth Amendment to the U.S. Constitution declares, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Yet in case after case, the Supreme Court has undermined that protection, leaving the people subject to an increasing variety of government searches, many conducted without a warrant. Occasionally, however, the Court does hold the government accountable under the Fourth Amendment. One memorable example came in the 2001 case of Kyllo v. United States.

At issue was the federal government's use of warrantless thermal imaging to detect signs of marijuana cultivation inside of a suspect's house. According to the government, no warrant was needed because the thermal imaging device detected "only heat radiating from the external surface of the house." In other words, since the telltale heat was basically discernible from outside of the property, the Fourth Amendment didn't apply.

Antonin Scalia

Writing for an unusual 5-4 majority line-up that included both conservative Justice Clarence Thomas and liberal Justice Ruth Bader Ginsburg, Justice Antonin Scalia rejected the government's dubious theory. "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion," Scalia wrote, "the surveillance is a 'search' and is presumptively unreasonable without a warrant." The Fourth Amendment lived on to fight another day.

Next: Putting the President in Check

8. Youngstown Sheet and Tube Company v. Sawyer (1952)

In April 1952 the United Steelworkers of America gave notice of an impending national strike. Among those opposed to this labor stoppage was President Harry Truman, who wanted the country's steel mills humming in order to best support American military involvement in the Korean War. Invoking his "inherent power" as commander in chief, Truman issued Executive Order 10340, commanding Secretary of Commerce Charles Sawyer to nationalize the privately-owned steel mills and operate them on behalf of the federal government.

The steel industry charged the president with exceeding his constitutional role and overriding the Labor Management Relations Act of 1947, which did not include a seizure provision for such cases. The Supreme Court agreed. "The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times," wrote Justice Hugo Black in Youngstown Sheet and Tube Company v. Sawyer. "It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand." In addition to stopping Truman's executive overreach, Youngstown later served as an important precedent when the Supreme Court sought to limit President George W. Bush's wartime excesses.

Next: Hitting the Target

7. District of Columbia v. Heller (2008)

Does the Second Amendment protect an individual right to keep and bear arms, or merely a collective right, contingent on militia service? That was the question the Supreme Court faced in 2008 when the legal challenge to Washington, D.C.'s notorious handgun ban finally reached America's highest tribunal. The Court's answer was a resounding victory for individual rights and the original meaning of the Second Amendment. The District of Columbia's gun ban is unconstitutional, Justice Antonin Scalia wrote for the majority in District of Columbia v. Heller, because it deprives individuals of their right "to use arms for the core lawful purpose of self-defense."

Heller was also a masterful victory for the burgeoning libertarian legal movement. As Brian Doherty reported in Reason's December 2008 issue, the Heller litigation "was pulled off by a small gang of philosophically dedicated lawyers—not 'gun nuts' in any stereotypical sense, but thoughtful libertarians who believe Second Amendment liberties are a vital part of our free republic. Together they consciously crafted a solid, clean civil rights case to overturn the most onerous and restrictive set of gun regulations in the country."

6. McDonald v. Chicago (2010)

Heller settled the fact that the Second Amendment secures an individual right against infringement by the federal government (which administers the District of Columbia). But what about the states? Are they bound by the Second Amendment as well? That was the question victorious Heller lead attorney Alan Gura set out to answer by challenging Chicago's equally restrictive handgun ban.

Otis McDonald and Dick Heller

The result was another landmark victory for individual rights. "We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States," wrote Justice Samuel Alito for the majority in McDonald v. Chicago. "Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States."

The ruling's most eloquent defense of individual liberty came courtesy of Justice Clarence Thomas, who filed a concurring opinion that offered both a mini-history of the origins of the 14th Amendment and a powerful argument for why armed self-defense is central to the struggle for racial equality.

Next: Freedom of the Press

5. New York Times Company v. United States (1971)

Richard Nixon and Elvis Presley

In June 1971, The New York Times ran the first installment of the "Pentagon Papers," a 7,000-word classified document leaked by former government official Daniel Ellsberg detailing American involvement in Vietnam prior to 1968. Claiming that further publication would violate the Espionage Act and cause "grave and irreparable injury to the defense interests of the U.S.," the Nixon Administration sought an injunction preventing both the Times and The Washington Post from going forward with future installments. In a contentious 6-3 ruling where each justice wrote a separate opinion, the Court struck down the government's actions.

"In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment," declared Justice Hugo Black in New York Times Company v. United States. "Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell."

Next: Earning an Honest Living

4. Meyer v. Nebraska (1923)

Does the Constitution protect unenumerated rights, or does it guarantee only those rights specifically spelled out in its text? The Supreme Court has weighed that portentous question on several occasions. In 1905, for example, in the case of Lochner v. New York, the Court struck down a maximum working hours law for bakery employees because it violated the unenumerated right to liberty of contract, which the Court ruled to be part of the 14th Amendment's Due Process Clause. Although Lochner has since been overturned, the Court got it right in 1905. The authors and ratifiers of the 14th Amendment understood it to protect a range of unenumerated economic liberties, including liberty of contract, against infringement by state and local governments.

In 1923 the Supreme Court cited Lochner in defense of another unenumerated right, the right to earn an honest living. At issue in Meyer v. Nebraska was a state law, passed in 1919 at the height of World War I's anti-German hysteria, forbidding both public and private school teachers from instructing young children in a foreign language. Among those impacted by the law was a Lutheran school teacher named Robert Meyer, who taught the Bible in German.

Writing for the majority, Justice James C. McReynolds nullified the statute. "Without doubt," McReynolds declared, liberty "denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." As for the Nebraska restriction, he continued, it unconstitutionally "interferes with the calling of modern language teachers, callings that have always been regarded as useful and honorable, essential, indeed to the public welfare."

Next: "We're Not Going to Let This Government Centralize Everything"

3. Schechter Poultry Corp. v. United States (1935)

Franklin Roosevelt

The first 100 days of President Franklin Roosevelt's New Deal saw an unprecedented expansion of federal power into every nook and cranny of American life. But no New Deal law went further than the National Industrial Recovery Act of 1933, which attempted the impossible: to centrally plan the U.S. economy. Through the creation of more than 500 "codes of fair competition," the Roosevelt administration and its allies in Congress sought to dictate the country's economic affairs. The federal government established cartels, rigged prices, and punished those who refused to toe the line. One such lawbreaker, a 49-year-old immigrant dry cleaner named Jacob Maged, spent three months in jail because he charged 35 cents to press a suit, instead of the 40 cent price mandated by the New Deal.

Thankfully, the Supreme Court put a stop to the madness. The National Industrial Recovery Act must be nullified, declared Chief Justice Charles Evans Hughes, writing for a unanimous Court in Schechter Poultry Corp. v. United States, otherwise there would "be virtually no limit to the federal power, and, for all practical purposes, we should have a completely centralized government." Even left-leaning Justice Louis Brandeis was outraged by the New Dealers' misdeeds. As Brandeis told White House lawyers Tommy Corcoran and Ben Cohen, "This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything."

Next: A Presumption of Liberty

2. Lawrence v. Texas (2003)

May state governments outlaw private same-sex relations between consenting adults? The Supreme Court faced that question in 2003 when it heard arguments over the constitutionality of Texas' notorious Homosexual Conduct Law.

"America's founding generation established our government to protect rather than invade fundamental liberties, including personal security, the sanctity of the home, and interpersonal relations," wrote Yale University law professor William Eskridge* in a friend of the court brief submitted in the case by the libertarian Cato Institute. "So long as people are not harming others, they can presumptively engage in the pursuit of their own happiness…. A law authorizing the police to intrude into one's intimate consensual relations is at war with this precept and should be invalidated."

The Supreme Court concurred. In a majority opinion that twice cited the Cato Institute brief, the Court invalidated the law. "In our tradition the State is not omnipresent in the home," wrote Justice Anthony Kennedy in Lawrence v. Texas. "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

In addition to nullifying the odious state law, Lawrence is also notable for the legal approach employed by Justice Kennedy. As the Georgetown University law professor Randy Barnett has observed, Kennedy's decision "requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow 'fundamental.' In this way, once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government." And since the Texas legislature was unable to offer any legitimate public health, welfare, or safety reason for its restriction, the statute had to fall.

* This article originally misidentified the author of the Cato brief.

Next: "Property Is More Than the Mere Thing Which a Person Owns"

1. Buchanan v. Warley (1917)

In 1914 the city of Louisville, Kentucky passed a Jim Crow residential segregation ordinance. Enacted "to prevent conflict and ill-feeling between the white and colored races," the law made it a crime for blacks to live on majority-white blocks and for whites to live on majority-black blocks. To spark a test case, the NAACP arranged for one of its black members to buy property in a white neighborhood from a local realtor who also opposed the law.

Moorfield Storey

Arguing the case before the Supreme Court was NAACP President Moorfield Storey, a prominent libertarian lawyer who helped found both the NAACP and the Anti-Imperialist League. The Louisville segregation law, Storey argued, "destroys, without due process of law, fundamental rights attached by law to ownership of property."

The Supreme Court agreed that it did. "Property is more than the mere thing which a person owns," Justice William Day declared in his majority opinion in Buchanan v. Warley. "It is elementary that it includes the right to acquire, use, and dispose of it." Moreover, Day held, the 14th Amendment "operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color."

It was the NAACP's first great legal victory, and it rested firmly upon a libertarian defense of property rights. It was also a crucial moment in the early civil rights struggle. As George Mason University legal scholar David Bernstein has argued, "though it was not used to its full potential, Buchanan almost certainly prevented governments from passing far harsher segregation laws." In fact, Bernstein wrote, "Buchanan may have saved the United States, or at least the South, from instituting South-African-style apartheid."