Libertarianism at the Supreme Court: Obamacare Under Fire, Gay Marriage on the Rise


In my new book Overruled: The Long War for Control of the U.S. Supreme Court, I chronicle the libertarian legal movement's 30-year campaign to persuade judges and lawyers on both the left and right to view the Constitution as a broad charter of individual rights that simultaneously places strict limits on the exercise of government power. Last week's big legal developments in the areas of gay marriage and Obamacare confirm that the libertarian legal movement is now helping to set the national pace.

On Thursday, conservative Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit voted to affirm gay marriage bans imposed by four states. With that decision, the federal circuits are now split over the legality of gay marriage. Translation: The Supreme Court is likely to step in. One day later, the Supreme Court returned to the fray over the Patient Protection and Affordable Care Act, agreeing to hear a statutory challenge to the legal basis on which more than 30 federally established health care exchanges are offering tax subsidies to individuals who purchased health insurance under Obamacare.

The common denominator here is that the libertarian legal movement has played a leading role in challenging both instances of government action. As I explain in my book, libertarian lawyers have been at the fore of the gay rights fight for the last decade, including in Lawrence v. Texas (2003), where an amicus brief filed by the Cato Institute's Center for Constitutional Studies played a key role in the Court's decision to invalidate Texas' ban on "homosexual conduct." As for Obamacare, the libertarian legal movement has been central to its opposition from day one.

With gay marriage on the rise and Obamacare facing yet another deadly legal threat, 2015 is shaping up to be a very libertarian year at the Supreme Court.