Libertarian presidential candidate Gary Johnson and his running mate William Weld fielded a series of questions last night on CNN's Libertarian Town Hall. One question in particular caught my attention.
"Could you elaborate on the type of judicial philosophy you would like to see in the next [SCOTUS] justice?" an audience member asked Johnson-Weld.
"Well, there wouldn't be a litmus test," Johnson replied. Johnson said instead that he would look for nominees who approach "the Constitution from the standpoint of original intent."
Johnson then invited his running mate to provide a more elaborate answer. "I would look for the best legal minds I could find and the whole person," Weld said. "Two of my idols on the court were Hugo Black and Bill Douglas."
It's curious to find a Libertarian presidential ticket name-checking Justice Hugo Black as a SCOTUS "idol." Black was a New Deal Senator from Alabama (and a one-time member of the Klu Klux Klan) appointed to the Supreme Court in 1938 by President Franklin Roosevelt. The best thing that can be said about Black from a libertarian perspective is that he was a First Amendment absolutist, a jurist who argued that "courts must never allow this protection to be diluted or weakened in any way."
Yet Black is no friend to libertarians when it comes to the crucial issue of judicial protection for unenumerated constitutional rights. As far as Black was concerned, the Constitution guarantees only those rights that it explicitly spells out.
It was this view that led Black to file his famous dissent in the 1965 case of Griswold v. Connecticut. In that case the Supreme Court struck down a state law that made it illegal for married couples to obtain or use birth control devices on the grounds that the restriction violated their unenumerated constitutional right to privacy.
"I like my privacy as well as the next one," Black huffed in dissent. "But I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." According to Black, the Supreme Court had no business protecting what he dismissed as "personal rights." Along similar lines, Black also thought the Court had no business protecting "economic rights." Black's Griswold dissent even unfavorably likened Griswold to the Court's 1905 decision in Lochner v. New York, in which a state regulation was struck down for violating the unenumerated right to liberty of contract.
Perhaps it should go without saying, but today's libertarian legal scholars take the opposite view from Justice Black when it comes to the judicial safeguarding of unenumerated rights. Generally speaking, the libertarian legal movement believes that the Supreme Court reached the right results in both Lochner and Griswold.
Ironically, Weld's idolization of Justice Black even undercuts Weld's outspoken support for abortion rights. How? The unenumerated right to privacy that was recognized in Griswold (over Black's dissent) served as a key precedent for the unenumerated right to abortion that was recognized in 1973's Roe v. Wade. So not only does Weld's invocation of Hugo Black raise a potential red flag for libertarian-minded voters, it also raises a potential red flag for pro-choice liberals who might be open to giving the Libertarian ticket a serious look.
(For a more detailed account of Justice Hugo Black's jurisprudence, including the influence of Progressive era legal thinking on Black's hostility to unenumerated rights, please check out the third chapter of my recent book Overruled.)