Supreme Court

The Supreme Court Now Leans Libertarian

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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.

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  1. 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.”

    And by that he means racism.

    1. Never trust the nazgul.

  2. W00t! Party at Suzette Kelo’s house!

    1. “Free” healthcare for the first 7 million people to show up!

    2. Sorry, Roberts is too taxed to attend.

      It would be nice to have some optimism, but the court does more rubber-stamping of the STATE IS RIGHT AGAIN than it does anything libertarian.

      I fear that a major misstep for advocates of civil liberties is not understanding that we’re moving towards having permission to do certain things versus having fundamental rights. It all stems from not understanding that the most important liberty for us is really the right to define and constrain the power of government over us. Without limited government, our rights are highly illusory.

      1. Right. Libertarian surge or not, the upholding of Obamacare takes the wind out of any sails of optimism I had in the SCOTUS at least.

    3. Yeah, Roscoe Filburn’s ghost can finally rest at peace..

  3. “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.”

    Oh, come on, pull the other one!

    Court after court is invoking this “federalist” decision to impose gay marriage on the states, in defiance of traditional-marriage provisions in those states’ constitutions and laws.

    I mean, go ahead and argue that the states’ traditional-marriage laws are such horrible violations of human rights that the courts must strike them down, but spare me the rhetoric about “federalism” – that warm, moist feeling on my leg isn’t rain!

    1. I would agree and add that even the favorable upholding and striking down is being done in the most federally-supportive and convoluted way possible.

      The Hobby Lobby decision wasn’t in favor of most freedom or least burdensome to Hobby Lobby, it was made in favor of least burdensome to the courts and legislature. Hobby Lobby can’t ‘withhold’ birth control because of the 1st Am. on religion or free association, that would raise all kinds of questions/outrage about the commerce clause, the women’s equality, and the ACA. Hobby Lobby *gets* to abstain from the birth control mandate in the penaltax because ‘closely held’ and RFRA.

  4. “The Supreme Court Now Leans Libertarian occasionally reads some of the document they are charged with protecting, and casually defends it sometimes”

    1. This.

    2. Say what you will, when followed, the Constitution is a fairly libertarian document. It’s entire purpose was to limit government and protect the rights of individuals. Perfect? No. But I would be very satisfied just seeing us actually adhere to it (again?).

      1. “Say what you will, when followed, the Constitution is a fairly libertarian document.”

        I agree.

        ” It’s entire purpose was to limit government and protect the rights of individuals.”

        Which the federal(& state) government has been casually ignoring, with the blessings of the SCOTUS since before the civil war. It was accelerated into the permission based society we see here about ~100 years ago.

        “Perfect? No. “

        And yet we settle for “not even close”.

        “But I would be very satisfied just seeing us actually adhere to it (again?).”

        Absolutely..

        1. “It’s entire purpose was to limit government and protect the rights of individuals.”

          Well, sort of. Its purpose was to limit the federal government, but not the state governments which retained nearly plenary powers (as long as they maintained a “federal form” and didn’t intrude into a federal perogative. But any concern over individual rights only crept into it with the Bill of Rights, not the Constitution as originally ratified, and even then only with respect to violations by the federal government until the 14th Amendment came along (and was very broadly construed).

          It seems to me that the Court isn’t so much drifting in a libertarian direction as much as actually (if cautiously) applying a few constitutional principles. Yes, there is some overlap between the two, but given the tortured reasoning Roberts has been cobbling together in order to get “unanimous” decisions*, there’s actually very little in them to give a libertarian much to cheer about.

          * They are “unanimous” in the result but hardly in the reasoning behind that result. We’ve seen more concurring opinions, and separate opinions merely concurring in the result, than I can ever remember. It’s hard to extract an actual legal principle from some of them.

      2. Exactamundo. There should never be a headline like this article because the Supreme Court should always lean libertarian. Libertarians look primarily to the Constitution and so “should” the SC.

      3. The Constitution has almost nothing to do with limiting government or protecting individual rights.

        As someone mentioned above, protecting rights didn’t come about until the Bill of Rights was added and even then that was practically irrelevant until the courts started adopting the Incorporation Doctrine (i.e. Bill of Rights applies to state governments as well). For example, it was perfectly fine for a state government to force you to pay tithe to a church until well into the 19th century.

        As far as its purpose in “limiting” the government, I would argue that “delineating its powers” is far more accurate. In historical context, the Constitution was actually a massive expansion of government power.

        1. I have to disagree. The Constitution was entirely to define the functions and structure of government so that it could not trample the rights of the individual.

          It is true that the Bill of Rights were amendments, but they were to further clarify the intent of the Constitution itself.

          The Constitution basically says, this is what government may do and nothing else.

          I don’t know where you come up with your position. I think you could not be more wrong and do not understand your point.

    1. Pay your fair share, bitter clinger!

  5. The Supreme Court Now Leans Libertarian

    This sentence right here proves that I am drinking. Too much or not enough….

  6. First Obama is libertarian, now the Supreme “It’s a Tax!” Court? I think Reason is just trolling us now.

    They didn’t even get the Hobby Lobby decision completely right since they ignored the First Amendment in favor of finding the mandate in violation of a previous Federal statute.

    1. To be fair, judges generally look to see if there’s a statutory way to resolve a case before they go to the Constitution.

      Anyway, I would argue that Congress, in passing RFRA, was acting to protect the Constitution by providing protection for First Amendment liberties when the Supreme Court failed to do so.

  7. Wow, yeah. Now that I’m secure in my person AND effects, it’s like it’s 1789 again!

    Woo hoo!

    I can’t wait to go sell my corn only to people whose political views – and sexual orientation – I embrace, cause – y’know – of all that freedom of association I got!

    Thanks, Libertarian Court!

    1. Hold it right there, you goddammed anarchist … is that GM corn you’re looking to poison us with? Is there a warning label?

  8. The next thing you know, the Court will be striking down all sorts of federal guns laws and drug bans, and overturning Roosevelt-era interpretations of the Commerce Clause as overreaching!

    And then I woke up.

  9. . “The Constitution does not forbid the government to enforce traditional moral and sexual norms,” Scalia fumed.

    Funny, I would have said that that is *exactly* what it does.

    1. “Wow, man, I can like *hear* the penumbras!” 🙂

    2. The Constitution does not forbid the government to enforce traditional moral and sexual norms

      That must be one of those enumerated powers that is only in the special SCOTUS edition of the Constitution.

      1. An enumerated power of not forbidding?

        Someone can’t read.

  10. “The Constitution does not forbid the government to enforce traditional moral and sexual norms,” Scalia fumed.

    Um…

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    And

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Fuck off slaver!

    1. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the ..HAHAHA..States respectively, or ..HAHAHAH.. to the BWAHAHAHAHA..*gasp*..HAHAHAHA.. pe.. HAHAHAHA..people. HAHAHAHAHAAAA.. that’s fucking fuuny shit right there.. Anyhow, where were we?

      ftfy

    2. The 9th amendment is interesting. I personally don’t believe the intent of it was to create a libertopia. That’s a rather convenient reading of it.

      1. And.. how would you interpret it?

        1. It’s extremely vague, but it’s essentially reminding people that listing rights in law doesn’t mean that no other rights exist, but it also doesn’t say what those other rights are and years of American tradition say that they are something less than everything libertarians want.

          If they wanted to establish libertopia, they could have been more forthright about it.

          1. So then, rights not named, or at least not explicitly implied, don’t exist? Does the federal government have rights, or responsibilities?

            1. On a moral level, other rights exist, but it would seem that legally, state and local governments have a right to be pretty restrictive on just about everything that is not implied in the Constitution. In practical terms, the ninth amendment nearly doesn’t exist. It matters more as a broad philosophical statement.

              1. So you think we should just disregard anything in the document we don’t like, is that what you are saying? Just kinda ignore it because if we were to actually follow it we might get freer, and we certainly wouldn’t want to be free or the government be limited.

                1. No. I just don’t think the ninth amendment very clearly means what you claim it does.

      2. The 9th amendment is interesting. I personally don’t believe the intent of it was to create a libertopia. That’s a rather convenient reading of it.

        Not really.

        It says we have rights that are not enumerated. The implication is that they are too numerous to be enumerated. My rights are nearly limitless, constrained only by the rights of others (the only logical limit). Meaning I have the right to do as I choose provided I’m not hurting anyone else.

        9A is the most libertarian clause in the document, which is probably why it’s ignored.

        1. It still doesn’t say what those rights are. As you admitted it can’t because there are so many, but if they really were establishing libertopia, they might have said:

          “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, which would include anything and everything thing that does not impose force or fraud on others.” (or something along these lines.)

          I’m not the first commenter here to note that, for better or worse, the Founders were not libertarian absolutists. I can tell you that Ron Paul would disagree with your approach to 9th.

  11. Try the NEW Damon Root, now with 85% more Unrealistic Optimism!

    1. I think Damon and Matt are punking the reasonoids. SCOTUS & POTUS are libertarian, thus saith Reason? Sounds like an idea spawned at midnight while they were both deep into their cups. Wanna bet they are laughing as us bitches in the comments section are getting wound up?

      1. Or they’re trying to justify their votes for Obama?

  12. The Constitutional Convention in 1787 was a great turning point for gay rights, or any other contemporary issue that an author wants to impute to the founders.

    1. Yeah dude. Just the other day I used my time machine to go back to the 1860s, and I asked the drafters of the 14th amendment if they meant to include a sweeping expansion of the definition of marriage in their 5 paragraph essay.

      They said “of course! We just hope no one realizes it for 140 years.”

      You see, in some cases, a strict reading of the constitution is the libertarian thing to do. In other cases, well, there’s always the time machine, amirite?

  13. The constitution leans libertarian. As the SCOTUS wipes their ass with it there remains a few readable lines but that hardly makes them libertarian.

  14. I don’t think you can say SCOTUS leans libertarian until they actually decide a plurality of their cases in ways that promote small government.

    They are light years away from that. Sure, they may have moved a couple of degrees from being totally supine, but they are a hell of a long way from leaning libertarian.

    1. I don’t think you can say SCOTUS leans libertarian until they actually decide a plurality of their cases in ways that promote small government voluntary interaction and unimpeachable property rights.

      In addition to the rights inflation of the past half century, we’re now suffering from a libertarianism inflation.

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

    And I’ll respect you in the morning.

  16. Trying to decide who has a better understanding of what the word libertarian means: Greg Gutfeld or Damon Root.

    Apparently libertarian now means that one favors an 18% federal tax rate rather than 23% in which all power mongers are in favor of the new professionalism of the police state.

  17. “The Constitution does not forbid the government to enforce traditional moral and sexual norms,” Scalia fumed.

    The horror!

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