Supreme Court

"Alito Shrugged": Is the Supreme Court Turning Libertarian?

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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.

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  1. Is the Supreme Court Turning Libertarian?

    Sure it is, just check Kelo v. New London and National Federation of Independent Business v. Sebelius. The unfettered free market is breaking down government controls every day in every decision.

    1. You’re being sarcastic, but those went 5-4, and 50 yrs. ago (probably much more recently than that) they’d’ve been 9-0 if they’d even gotten that far, which they probably wouldn’t’ve, because they wouldn’t’ve been thought worthy by either the judges or the advocates.

  2. Is this a serious post?

    There is no one in SCOTUS that is even remotely Libertarian. This is the body out of which came, from the supposedly most right leaning member, the absurdity of penaltaxes.

    rising libertarian influence is not all good news for progressives

    There is nothing about Libertarianism that is good news for progressives. They are as anti-libertarian as it gets. Maybe they are getting some pleasure out of the currently growing rift in the GOP, but rest assured, they hate us, worse than they hate any conservative.

    1. Maybe they are getting some pleasure out of the currently growing rift in the GOP, but rest assured, they hate us, worse than they hate any conservative.

      x2

      They like us because we cause problems with conservatives, not because we’re friends. If they valued things like curbing the WoD or reining in the National Security State, they would have done so when they had both houses and the oval office.

    2. Maybe they’re talking about that Detroit brand of libertarianism the media has been going on about the last few days.

  3. rising libertarian influence is not all good news for progressives.

    *snicker*

    Yeah, progressives just love the first and second amendments.

    Oh, and they just can’t get enough of those enumerated powers.

    1. Just see Obama’s pledge to use “executive power” as often as he can to regulate the economy.

    2. I’d argue that any rising libertarian influence is unequivocally bad for progressives. Progressive ideology is pretty much the polar opposite of libertarian ideology. That’s why conservatives are willing to tolerate libertarians more than progressives are. There are points of actual agreement between conservatives and libertarians, whereas progressives are in favor of the TOTAL STATE and are a borderline neo-fascist movement.

      1. Borderline?

      2. I would say this is too broad a statement. I am sure there are many civil libertarian progressives who would welcome at least certain libertarian legal arguments.

        1. I don’t think I’d consider anyone a progressive if they are in favor of civil liberties. I think that there are liberals who are in favor of civil liberties and there are certainly people on the left that are in favor of civil liberties.

          Those people aren’t progressives. To be a progressive one must believe in the power of the state to order the lives of the citizens. There are very few people who claim to be ‘progressives’ who give a damn about civil liberties.

          1. Those people aren’t progressives.

            Agreed. You are making the same distinction I am.

          2. Well, your leaving out the left-anarchist type of progressive like the people in the Occupy movement.
            Those people don’t believe in the state, but they do believe in group solidarity. The defining feature of leftist thinking is collectivism. If you are a collectivist, you’re going to place a high value on social solidarity, and so you’re going to be inclined to think that dissenting individuals should knuckle under and go along with what the majority wants. Hence, progressives do place a lower priority on civil liberties, but not because they believe in the power of the state. They believe in the power of large group entities to rule over individuals, and they think individuals have a duty to submit themselves to the will of larger entities.

            1. Hence, progressives do place a lower priority on civil liberties, but not because they believe in the power of the state.

              I’m just not convinced of this.

              They believe in the power of large group entities to rule over individuals,

              Which always manifests itself as The State, and is always run by a group of enlightened elites who are chosen to rule over the many.

              To the progressive, civil liberties are most often redefined as privileges… or should I say privileges are redefined to be civil liberties.

              Your ‘rights’ must be provided to you from a third party… often by force.

            2. Sorry, but “group solidarity” vs. “the state” is a distinction without a difference. Given the slightest hint of power, Progs WILL impose their will on others. Collectivism is collectivism, regardless of what theories you propound to justify it.

              This is why the whole “left v. right” thing is bogus. The only difference between right-wing collectivist-authoritarians and left-wing collectivist authoritarians is just what aspect of your behavior they want to control first. (They will get around to all of it, sooner or later.)

          3. I would point to Noam Chomsky as someone who is progressive but has constantly spoken out against illegal wars by both parties, the ‘war on drugs’, obamas use of drones and his attack on civil liberties.

            Of course, if you are saying your definition of progressive is someone who doesn’t believe in civil liberties, then it doesn’t matter that Chomsky calls himself a progressive. However, I think the term progressive is more encompassing than your limited definition simply by going by those who call themselves such.

        2. Nope, no-sirree, uh-uh. “Progressives” are to progress as “Liberals” are to liberty. That is to say, they like the sound of the word, and they think it’s a good “brand”. When confronted with the real thing, they want no truck with it.

          I have yet to hear about a Prog who wasn’t a straight-up collectivist. The absolute only time Progs oppose state power is when the state is doing something they don’t like. Even then, they’re convinced that more power to the state would be a good thing, if only the proper, enlightened people were in charge. The overlap between libertarianism and progressivism is as close to zero as makes no difference.

      3. I agree, which is why Ive been distinguishing between progressives and liberals recently.

        Like with conservatives, libertarians and liberals can find some common ground, but not so with progressives.

        They really are the bottom of the Nolan chart.

      4. I don’t think progressivism is the polar opposite of libertarianism. There is crossover on civil libertarian issues.

        I think the real problem is that leftists in general have a problem with groupthink. These are people whose philosophy is about collective solidarity so it’s natural that amounst themsleves they would value conformity and social unity, and thus tend to suppress dissent and coerce people into falling into line with the “conesus” within the group. This makes leftists in general more intolerant towards differences of opinion, no matter what subject it is about. If you’re dissenting against the majority opinion, you’re not just having a difference of opinion, you’re a wrecker who is undermining social cohesion.

        Conservatives and libertarians don’t place such a high value on social unity, and thus are more tolerant towards minority opinions.

        So even if libertarians actually share more values with progressives, we’re more likely to align ourselves with conservatives because conservatives are politically tolerant and progressives are intolerant.

        1. There is crossover on civil libertarian issues.

          No there isnt.

          Liberals and libertarians have some crossover on civil liberties. Progressive and liberals are in fundamental disagreement on them.

          See the Amash amendment vote within the Ds for the difference.

          See progressive support for stop and frisk.

          See progressive support for foie gras bans and soda size limits and food truck laws.

          See progressive support for the war on drugs.

          And so on.

          1. Progressives are generally against the war on drugs. But they are kind of like Bill Mahar. They are libertarians about the things THEY want to do – just not about all the stuff that OTHER people want to do that they disapprove of.

            1. They’re against the “war”, but in many respects seek its goals.

        2. I’m not sure what “values” we share with progressives. I do think that progressivism and libertarianism are darned close to polar opposite.

          Starting from the most basic nugget:

          Libertarians believe in individualism.

          Progressives abhor it.

        3. You’re also describing a difference (on avg.) between men & women. Women disvalue dissent. They conflate disagreement with discord. Lots of men like a good argument, while women seek to avoid arguments. They prefer to gossip.

          Ever participate in online forums dominated by women? Very easy to get kicked out?all you need do is write in disagreement with other people there. The moderators don’t like that kind of “tone” or “destructive attitude”, even though you’re being perfectly polite.

  4. 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.

    And WHY would that be bad?

    1. why do you hate the trees and the poor?

  5. Libertarian legal arguments have been gaining traction over the past three decades

    Then why does my ass hurt?

    1. Regardless of whether libertarianism is actually gaining traction, I hope the media/politicos continue to claim it is.

      Self fulfilling prophecy.

      At least, it will raise awareness of libertarianism enough to attract those sick of the status quo. At most, it could be the start of a libertarian revolution (meaning peaceful revolution for the NSA agent monitoring this IP address).

      I’ve said this before, but our chance is now. If we fuck it up, we won’t get another chance for generations. We’ve got a leader. We’ve got public opinion leaning our direction. We’ve got the country coming apart at the seams. We’ve got the atrocities committed by the establishment parties coming to light…

      There is a glimmer of hope.

      1. We’ve got a leader

        Even better, we have multiple ones. Libertarianism as a personality cult wont work.

        But with multiple libertarian leaders, things can work.

        1. Agreed.

          And we don’t need majorities. We just need enough libertarian representation to cover the spread between Team R/B.

          That is, if the axiom that libertarianism is loosely defined as fiscally conservative and socially liberal, holds (yes, I know, this is arguable). The libertarians will vote with republicans on fiscal issues and with democrats on social issues. We determine the outcome on nearly every issue.

          1. The libertarians will vote with republicans on fiscal issues and with democrats on social issues. We determine the outcome on nearly every issue.

            In my experience that’s just a prelude to an ass fucking. Libertarians being used like little bitches.

            The end goal must be power vi a new party, or successfully infiltrating one of the existing parties.

            1. Agree, but…baby steps.

              And I think the party infiltration is a lot more likely than starting a third. Too much to overcome when starting from scratch. Particularly in the area of funding.

            2. The interesting thing is that progress often happens in spite of established interests. Take the abolition of slavery. It was in hardly anyone’s actual political or economic interest to end slavery, and yet it happened. Why? Primarily because the arguments against slavery gradually won – just by persuasion. It became impossible to justify morally.

              We’re going to win because our arguments are right.

  6. The most “libertarian” of the Justices is fine with a school official strip searching a little girl because of a rumor she might have an Advil.

    Land of the free, indeed.

    1. You do that all the time. What are you complaining about?

      1. Duh, someone’s horning in on his racquet.

      2. It wasn’t an Advil, asshole.

        1. It was a suppository, right?

          1. We all know that nothing comes out of your ass that doesn’t go right back in.

            1. Wait, Epi is Sasha Grey’s sockpuppet?

  7. Is the Supreme Court Turning Libertarian?

    No

    Next question

  8. If it could only be true Christie would blow a gasket.

  9. Libertarians are on the right side of history, and will continue to gain influence with our legal arguments.

    There was an interest TED talk linked to over at Bleeding Heart Libertarians on this subject. http://www.youtube.com/watch?v=lrZ2DJzbYYo

    1. For all the influence we’ve gained, it seems like government spending and spying and warmaking are all moving in the wrong direction.

  10. “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”

    I don’t see marriage equality as a progressive issue, at least not philosophically. Progressives don’t think that gay people should be free to get married–they think the government should force religious people to accept gay marriage. …and those are two different things.

    1. Actually if progressives had their druthers, they druther replace either marriage or spouse selection with something more “scientific”. Think mandatory matchmaking by a big outfit.

    2. Co-rect. The libertarian position is that the state should get out of the business of saying who is or isn’t “married”, and stick to enforcing contracts.

      I recently heard a news story saying that the DOMA decision would involve changing a THOUSAND different federal laws. In what “libertarian” world does the fed-gov have a thousand laws regarding marriage?

      Striking down DOMA may have been a good thing, but it was hardly a great blow for liberty. It may have changed the rules for how the feds interfere in people’s private lives, but it left their ability to do so 100% intact. That’s hardly a victory for freedom.

  11. These same ‘libertarian’ influenced judges are the same ones who previously denied standing to challenge the NSA because no one could prove they were hurt by a secret program.

    1. That Catch-22, it’s a hell of a catch, dontcha know. You can’t sue because you can’t prove you were affected, but you can’t make the Big Boys tell you whether or not you were affected. National Security, and stuff.

  12. Boiled down, NFIB’s governing opinion actually pushed SCOTUS even further away from serving as a check on the government. It rests, ultimately, on (a) a rewriting of a fatally flawed statute in order to save it, a rewriting that is completely contrary to the legislative record, and (b) an abdication of the Court’s anti-majoritarian mandate in favor of what amounts to a radically increased “political question” safe harbor for Congress and the President.

    On net, when push comes to shove on major issues, the Court is not libertarian and is not moving that way that I can see.

  13. If we’re bringing out the Libertarian budget axe, there’s a lot to cut before we get to Medicaid. Unlike Social Security and Medicare, which provide taxpayer funds to old people even if they are wealthy, which they tend to be as a group, Medicaid helps the poor. Get rid of Social Security and Medicare first.

    1. You are, of course, correct. But either way, a lot of libertarian shit has to happen before we get to any of the three.

  14. From the court that brought us the penaltax, I think it’s safe to say there is not one shred of libertarian sentiment up there.

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