Supreme Court

The Supreme Court Now Leans Libertarian


Roughly one year ago, shortly after the U.S. Supreme Court concluded its 2012-2013 term, progressive legal activist Simon Lazarus took to the pages of The New Republic to sound the alarm against what he saw as the growing threat of libertarianism and its "potentially seismic" influence on the Court. The "recent surge of libertarianism among conservative academics, advocates, politicians, and of course, voters," Lazarus worried, has now "begun to register at the Supreme Court."

Indeed it has. For instance, although the outcome was also cheered by progressives, the Supreme Court's blockbuster 2013 ruling against the Defense of Marriage Act was heavily flecked with libertarian legal principles, including both a robust defense of individual liberty and a lengthy ode to federalism. What's more, Justice Antonin Scalia's dissent in the case effectively accused the majority of engaging in a bout of libertarian judicial activism. "The Constitution does not forbid the government to enforce traditional moral and sexual norms," Scalia fumed.

That libertarian trend continued apace when the Court wrapped up its most recent term last week. Indeed, in case after case this term, the justices issued one broadly libertarian ruling after another, voting against aggregate limits on campaign finance spending; in favor of a legal challenge to a speech-restricting Ohio law; against warrantless cellphone snooping by the police; against expansive government privileges for public-sector unions; and against the executive overreach of the Obama administration. Lazarus was definitely right to worry.

What explains the libertarian surge? In 2010 I reported on the rise of a distinct libertarian legal movement within the ranks of the larger conservative legal community. Led by such pioneering figures as Georgetown law professor Randy Barnett and Cato Institute legal scholar Roger Pilon, the libertarians took aim at the reigning legal orthodoxies on both the right and the left, urging broad constitutional protections for the individual against the state in wide areas of life. To put that in simpler terms, they came out swinging on behalf of both gay rights and gun rights.

That principled stance, which was backed by decades of painstaking legal and historical scholarship by Barnett, Pilon, and others, gradually began winning new converts to the cause. In time, the libertarian legal movement began to shape the outcome of major cases as well.

As one measure of this widening success, consider the example of the Cato Institute's Center for Constitutional Studies, which weighs in on the major legal issues of the day by submitting amicus briefs at the Supreme Court. In 2013, Cato filed 19 briefs and came out on the winning side in 15 of those cases. This year, Cato's win-loss record at SCOTUS was an impressive 10-1.

All that seismic libertarian activity is starting to shake things up at the Supreme Court.