Supreme Court

As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed

Libertarians and conservatives agree on Trump's judicial picks so far. But how long will the harmony last?

|

This week President Donald Trump announced the names of 10 judicial nominees he is putting forward to fill vacancies on federal courts around the country. It is an impressive list, featuring both distinguished legal academics and respected state judges. What's more, Trump's picks have been widely cheered on the legal right, earning kudos from both conservatives and libertarians.

C-SPAN

Writing at the Library of Law & Liberty, John O. McGinnis also praises Trump's judicial picks and then goes on to speculate about why they have been so uniformly applauded by right-leaning legal thinkers. "Appointing judges whose ideal is to enforce the Constitution as written unites almost all strands of the political right," McGinnins notes. "For traditional conservatives, the Constitution represents an anchor against too rapid change. For libertarians, the Constitution contains valuable limitations on government power and protections of rights."

But don't conservatives and libertarians also have some pretty fundamental disagreements about the meaning of the Constitution? How long can the current harmony last on the legal right? McGinnis has some interesting thoughts:

[O]ne might wonder whether this union will survive the increasingly fierce debate between judicial engagement and judicial restraint among constitutional theorists on the right. Given the harshness of the words exchanged, it might seem surprising that Trump's judges receive praise from both quarters. These appointees, as fine as they are, cannot be simultaneously apostles of judicial engagement and judicial restraint.

In McGinnis's view, the union will hold for now because it makes sense as a temporary political alliance. But it will start to fray as the conservative legal movement enjoys greater and greater success:

Most libertarians and conservatives prefer the other's interpretive methodology as compared to the increasingly aggressive progressivism of left-liberal judicial review, because advocates of both engagement and restraint at least begin with the Constitution's original meaning. Political enemies often help bind coalition partners who are in less than full agreement. But if Trump were to replace Justices Kennedy, Breyer and Ginsburg, the theoretical debates would then gain political resonance. Political victories are never permanent in part because they make real divisions out of the theoretical fault lines that previously existed.

In other words, as more "conservative" judges are appointed to the federal bench, the various factions within the conservative legal movement will increasingly jockey for position and influence, and will increasingly clash with each other over their preferred candidates for judicial vacancies.

Here's an example of how the rift between conservative and libertarian legal thinking might play out on the national political stage. One of the names on Trump's famous list of 21 potential SCOTUS candidates was Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit. Pryor is a strong advocate of judicial deference. In a 2007 article in the Virginia Law Review, for example, Pryor praised the Supreme Court for its landmark 1937 rulings in favor of New Deal regulations, such as National Labor Relations Board v. Jones & Laughlin Steel Corp., in which the Court adopted an expansive new interpretation of congressional power under the Commerce Clause, and West Coast Hotel Co. v. Parrish, in which the Court overturned its previous line of cases protecting the fundamental right to liberty of contract. "Not every controversy requires a judicial resolution or trumping of the will of the majority," Pryor wrote. In those pro-New Deal rulings, he insisted, "the judiciary wisely has acted with restraint."

Now contrast Pryor's views with those of Texas Supreme Court Justice Don Willett, whose name also appeared on Trump's SCOTUS short-list. "When it comes to regulating the economy," Willett complained in his 2015 concurrence in Patel v. Texas Department of Licensing and Regulation, "Holmesian deference still dominates" at the Supreme Court. The term Holmesian refers to Justice Oliver Wendell Holmes Jr., the patron saint of liberal and conservative devotees of judicial deference. Needless to say, Willett rejects the Holmesian approach. "The State would have us wield a rubber stamp rather than a gavel," he declared in Patel, "but a written constitution is mere meringue if courts rotely exalt majoritarianism over constitutionalism, and thus forsake what Chief Justice Marshall called their 'painful duty'—'to say, that such an act was not the law of the land.'"

Pryor and Willett are both "conservative" judges and they no doubt agree on many issues. But on this fundamental issue—do courts owe "Holmesian deference" to democratic majorities?—they are in stark disagreement. So here's a thought experiment: Imagine that Justice Anthony Kennedy retires from SCOTUS and Trump lets it be known that he is choosing between Pryor and Willett to replace him. Will the conservative legal movement still maintain its current levels of harmony?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

60 responses to “As Trump Reshapes the Judiciary, Libertarian-Conservative Fault Lines Are Exposed

  1. But on this fundamental issue?do courts owe “Holmesian deference” to democratic majorities?

    Which is the conservative side of that fault line?

    1. They’re agin’ it!

      1. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

        This is what I do,.,.,.,.,… http://www.webcash10.com

  2. There’s barely enough here for me to stain my underwear. How am I supposed to get a full pants-load out of this?

    1. You will no doubt manage. Oh wait, did you mean metaphorically? Never mind.

    2. Kennedy will retire or definitely should.

      The skid marks will come from RBG croaking by falling asleep and never waking up.
      The pants-shitting will come from Breyer croaking too during Trump’s first presidential term. He is 79

      The left would fill out many casks with tears if the only lefties left on the SCOTUS were Sotomayor, Kagan and Roberts.

      1. Well you certainly said some things. I’m not sure I can take any meaning from it, but you said things.

        1. I was responding to some other things said. I certainly take your meaning from it. Things out.

          1. It’s seems kinda strange to reply to others by replying to me, but whatevs.

            1. That’s just how I roll.

      2. I’d probably just go pop some popcorn and scan the Democratic Underground for the entertainment value during those confirmation hearings.

    3. How am I supposed to get a full pants-load out of this?

      Go back a few articles and swoggle Chaptard’s cock.

      That’ll do it for ya.

      1. Pass. That litter box is so full you guys got shit all over the walls.

        1. “you guys”?!?!?!

          Are you “othering” us, you misandrous Shitlord?

  3. More like fake libertarians are being exposed for the TDS they’ve always had.

    And you write for a magazine called ‘reason’, at the same time this site says if trump didn’t have anything to hide, why did he fire Comey?

    1. Real libertarians love Trump?

    2. That’s…not what this article is about?

      1. We’re right in the middle of another narrative cycle. Every article is about fake libertarian TDS pants shitting.

        1. Could you put some parens around that?

          (fake libertarian) TDS pants shitting
          (fake (libertarian TDS)) pants shitting
          (fake (libertarian TDS pants)) shitting
          (fake (libertarian TDS pants shitting))
          (fake (libertarian TDS pants shitt)ing)

          and various subsets etc.

    3. To be fair, that is what other people at the cosmo parties are writing.

  4. “Appointing judges whose ideal is to enforce the Constitution as written unites almost all strands of the political right,” McGinnins notes. “For traditional conservatives, the Constitution represents an anchor against too rapid change. For libertarians, the Constitution contains valuable limitations on government power and protections of rights.”

    But don’t conservatives and libertarians also have some pretty fundamental disagreements about the meaning of the Constitution?

    This is one of the legitimate reasons why a libertarian might have broken for Trump in the general election–to fill the judiciary. Remember, the question wasn’t whether Gary Johnson or someone else should fill those vacancies. The question was whether those appointments would be made by Donald Trump or Hillary Clinton.

    It’s like in an IRR analysis, when you’re measuring the desirability of an alternative investment. The alternative to Trump was a negative return on Hillary. Hillary promised to stack the judiciary with justices who were hostile to the Second Amendment and free speech, among other things.

    Wouldn’t it be great if America got to choose between Trump and Rand Paul?

    Well, yeah, but those were the options in the primaries–not the general election.

  5. From a judiciary perspective, if Rand Paul might have appointed all the same justices that Donald Trump has, so far, then Donald Trump has really hit the ball out of the park for libertarians–without even trying. Moving forward, that will still be the analysis that really matters.

    Whether a libertarian might do better than Trump will become a relevant question should Rand Paul challenge Trump in the primaries come 2020. Until then, we should be differentiating between Trump’s record and Hillary’s list of appointments–and Hillary’s absurd criteria for picking other offices was entirely superior to the hostility to the Bill of Rights criteria she promised to use during the election.

    http://tinyurl.com/mq4hb87

    1. Until then, we should be differentiating between Trump’s record and Hillary’s list of appointments

      Another comparison would be between Trump and other Republican Presidents.

      W ended up ok, but largely because they punted Meyers.
      HW screwed up with Souter, but hit it with Thomas
      RW got a couple kind of squishy with Kennedy and OConnor.

      Supreme COurth Nominations

      We’ll see about Gorsuch, but I see some NYTimes chart showing him the most conservative, next to Thomas.
      “Closest to Thomas” is a big endorsement to me.

      How Conservative is Gorsuch?

  6. As much as I’d prefer libertarian judges over mere conservatives, the first priority is getting the rudder off hard left. Even if it swings back right for a while, the general course will still tend towards straight instead of circling the drain.

    Sailors might prefer to not tack, but at least tacking follows a base course instead of getting blown off course on to the rocks.

    /Boaty McBoatFace

    1. Aaaarrrggggghhh.

      Thar scallywags on the left are tryn everythin to send the USA to davy jones locker and loot our booty on the way to fiddler’s green.

      Any matey who steers the furner away from hazards of the sea is a jack ‘o mine.

      /Gentleman ‘o fortune


  7. “But don’t conservatives and libertarians also have some pretty fundamental disagreements about the meaning of the Constitution?”

    Do we? I’m curious, could you define ‘conservative’ for me because I don’t think you’re using the right word here considering the rest of your article. I suppose if you’re not talking about Constitutional Conservatives this could indeed hold true.


    In a 2007 article in the Virginia Law Review, for example, Pryor praised the Supreme Court for its landmark 1937 rulings in favor of New Deal regulations, such as National Labor Relations Board v. Jones & Laughlin Steel Corp., in which the Court adopted an expansive new interpretation of congressional power under the Commerce Clause

    Oh, so no you’re not actually talking about ‘Constitutional Conservatives’ at all. Carry on.

    1. Was there a point to posting this?

      1. Just pointing out that saying that ‘Conservatives’ and ‘Libertarians’ diverge on some issues doesn’t actually shed any light on anything at all outside of the specific examples. The examples provided are actually decent, but the central premise of a divide between the two groups isn’t useful. One could just as easily say that ‘Conservatives’ are divided as a premise and the examples would still work. Probably because that should have been the real thrust of the story, but I guess they had to insert ‘Libertarian’ in there somewhere.

        1. There is substantially more overlap between the conservative and libertarian camps than there is between modern liberals (ie. Proggs) and classical liberals.

          While modern liberals may share some particular goals with libertarians it is imperative to recognize that what they offer is nothing more than limited specific and express permission. Because they fundamentally do not believe in individual liberty.

          1. Indeed, I just think that the oddities of Trump’s judicial picks has to do more with infighting within the Republican party and ‘conservatism’ in general than it represents any kind of a particular deivide between so-called ‘Conservatives’ and ‘Libertarians’. Especially when ‘Conservative’ and ‘Libertarian’ on their own don’t mean anything in particular, especially since there are few if any of them in office even while there are plenty of Republicans.

    2. is it just me, or have both “liberal” and “conservative” become essentially a meaningless “this person disagrees with some things I think” label?
      I called myself a conservative way back in high school- as a way to differentiate from republicans. At the time, I believed it meant limited government. I’ve since had that notion corrected. However, I struggle to define it as a political philosophy.

      1. They are vast straw man arguments available to both sides, and both of them apparently apply to libertarians.

  8. Libertarians: less government.

    Conservatives: less government, but more government.

    Libertarians: end the drug war.

    Conservatives: fuck you, throw everybody in jail and build more jails. Job creation!

    Libertarians: leave people alone.

    Conservatives: fuck you, that’s why.
    Liberals: fuck you, that’s why.

    Politic Enemy Number One According to Conservatives and Liberals Despite Having Almost No National Power: Libertarians. Because reasons. And God. And the Bible. And transgender rights. And Somalia. And the children.

    1. Gawd, you are fucking moron! A real one.

      At least read something. Conservatives do not call Libertarians Public Enemy #1. They use that term for Liberals and the MSM
      Liberals call Conservatives that.

      Libertarians are basically so few, that they do not really exist for all practical purposes. Unless they are reason.com libertarians. Those are basically Republicans

      1. Conservatives come after libertarians pretty hard when it looks like libertarianish types are about to “steal” an office or something from a conservative. From what you’ve posted over the last couple of days you seem pretty ill-informed, so i’ll forgive you for apparently never having heard of Lindsey Graham, John McCain, Mike Huckabee, or Rick Santorum (not that most conservatives would scramble to claim McCain these days).

        Also, everyone: GODDAMMIT QUIT REFERRING TO PROGRESSIVES AS LIBERALS. Progressives are not liberals, and progressivism is in fact an anti-liberal philosophy. Words do mean things. Thank you.

      2. Speaking of morons……

    2. who knew William F. Buckley was such a libertarian?

  9. If we ever get to the point where our defining arguments are whether someone is more or less bound to the Constitution rather than whether they even recognize it’s limits, I’ll be a happy man. If we’re picking between two notional “conservatives” and the progressive is nowhere to be found, I’ll be very satisfied with the esoteric arguments that follow.

    1. Just don’t come in contact with the police, and you’ll remain happy.

    2. Just don’t ever try and hide your innocence and you’ll remain happy.

    3. Don’t assume your life is your own, and you’ll be happy.

      Note: this works for the inevitable return of the Democrats to the seats of power also.

  10. “For traditional conservatives and libertarians, the Constitution contains valuable limitations on government power and protections of rights and represents an anchor against change that empowers statists and collectivists over individuals”

    There.

    Fixed that for you.

    Conservatives aren’t ‘against change’. They’re against change that is made for the sake of change. They’re against change that is leapt to unwisely.

    Conservatives and libertarians are largely agreeing on Trump’s court picks.

    And Liberals and Liberaltarians are having frothing TDS tantrums about them. Why?

    “For liberals and liberaltarians, the Constitution stands in the way of ending limitations on government power and represents an anchor against change that empowers statists and collectivists over individuals”

    That’s why.

    Because no matter how pretty they try to make it sound, ‘left’ always ends with an authoritarian, collectivist shithole.

    1. Conservatives aren’t ‘against change’.

      You’re missing an ellipses.

    2. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.

      That’s a pretty fair distillation of American conservatism IMO. It is also a sort of conservatism embedded deeply in early enlightenment liberalism. Which is a prime reason why our ‘revolution’ was so different from all subsequent ones. Not coincidentally also why our government has stood the test of time while so many other post revolutionary governments have not.

  11. “…as more “conservative” judges are appointed to the federal bench, the various factions within the conservative legal movement will increasingly jockey for position and influence, and will increasingly clash with each other over their preferred candidates for judicial vacancies.”

    If the choice is either that, or more progressive leftism then it is a briar patch I can live with.

  12. I don’t think it’s that likely the judiciary causes a rift. The judiciary is probably the branch whose role conservatives and libertarians are closest to agreeing on.

    Congress is the main spot for Republicans to demonstrate that they’re definitely not libertarians.

    1. Lately the Senate has been the place for Republicans to demonstrate that they are not conservatives.

      Unfortunately they are not doing so by being libertarians either.

    2. Hard to get much of a rift on law between Libertarians and Conservatives when the alternative is the Left, which only believes in Power, and not Law.

      The Living Constitution is the license the Left grants itself to rule by whim.

  13. The idea that the conservative-libertarian alliance on judges is going to win so much that the factions will get sick of the winning and start to fight each other is . . . implausible, at best. Four years is not long enough to genuinely reshape the judiciary, even with a few high-profile SC changes. Eight might get there, except that R control of the Senate is likely going to go away even if Trump wins re-election.

    1. 4 years is plenty of time to reshape it, but not plenty of time to certain how it was reshaped, since the Right flakes Left so often.

      Ruth is 84. I think the rumor is that Kennedy is retiring after this summer.

      After that, it’s Breyer at 78. He’ll probably hang on.

      Ruth and Kennedy seem likely, and soon. That would be a big swing in the court. Kennedy has been the squish vote, usually going Right. Firm up the squish and take Ruth, and the court is a hard 6-3 conservative majority, and for quite a while.

      Also, Ruth is probably the intellectual leader of the Left. Without her, I don’t see an effective intellectual opposition.

  14. It will break at any moment as Trump the Holy and Righteous has his judges placed and then we begin the Theocratic Handmaiden’s Tale of America. All women will be stripped of their rights and property. Then they will be forced to procreate for the powerful barren wives of the politicians. I think my article would have been far more interesting than the tripe above. This so far is the one great action Trump is performing, let’s not jinx it!

  15. test

  16. Do you have a paypal account ? in the event if you do you can make an additional 300 a week in your revenue working from home for 3 hours every day… go to

    ……. http://www.Prowage20.Com

  17. This was the main reason why I wanted Trump to win, I know Reason was making a stink in some articles about how “it doesn’t matter who wins as president and picks judges” but I declare that a bunch of bunk. While Trump’s picks aren’t perfect, they aren’t far left lunatic control freaks like Hitlery would’ve picked and these judge’s rulings have far more consequences than a stupid bill passed through the legislature.

  18. I get paid 99.00 bucks every hour for work at home on my laptop. I never thought I’d be able to do it but my good friend HUe is earning 22.00k /monthly by doing this job and she showed me how. Try it out on following website

    …… http://www.Prowage20.com

  19. gives you a great opportunity to earn 98652$ at your home.If you are some intelligent you makemany more Dollars.I am also earning many more, my relatives wondered to see how i settle my Life in few days thank GOD to you for this…You can also make cash i never tell alie you should check this I am sure you shocked to see this amazing offer…I’m Loving it!!!!

    ====== http://www.Prowage20.Com

Please to post comments

Comments are closed.