Hit & Run

From Bork to Willett: Is the Conservative Legal Movement Going Libertarian?

Libertarian legal ideas are gaining ground.

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When President Ronald Reagan nominated Robert Bork to the U.S. Supreme Court in 1987, he praised his nominee for being "widely regarded as the most prominent and intellectually powerful advocate of judicial restraint."

It was no exaggeration. During his decades-long career as a law professor, federal judge, and legal commentator, Bork routinely preached the virtues of a deferential judiciary, arguing that in the vast majority of cases "the only course for a principled Court is to let the majority have its way."

Where Bork led, most legal conservatives were ready to follow. Judicial deference, or restraint, became a rallying cry on the legal right.

Borkean deference still holds sway today in many quarters. But it is also increasingly under fire from libertarian-minded legal thinkers who want the courts to play a more aggressive role in defense of individual liberty and against overreaching majorities.

Case in point: The new issue of Governing magazine profiles Don Willett, the Texas Supreme Court justice who recently appeared on Donald Trump's shortlist of potential U.S. Supreme Court candidates. Willett "is witty and approachable, and he's huge on Twitter," writes journalist Alan Greenblatt. "He's also one of the most influential jurists in the country right now."

Willett's rising influence signals Bork's declining favor. It shows that libertarian legal ideas are gaining ground.

To be sure, Bork and Willett are both "conservative" and both have ties to the Republican Party. But they differ in important ways. Bork wanted judicial minimalism; Willett wants judicial engagement. "The State would have us wield a rubber stamp rather than a gavel," Willett complained in the 2015 case of Patel v. Texas Department of Licensing and Regulation, "but a written constitution is mere meringue if courts rotely exalt majoritarianism over constitutionalism." (Willett also cites my book in his Patel opinion.)

Texas Supreme Court

As Greenblatt notes in his profile, "Willett is pretty blunt about his overall intent. He's a champion of individual rights, claiming a central role for the judiciary in protecting those rights against state encroachment." Bork, by contrast, was obsessed with limiting the judiciary's role. If Bork's great enemy was judicial activism, Willett's great enemy is judicial pacifism.

The differences don't stop there. According to Bork's interpretation, the 14th Amendment offers zero constitutional protection for economic liberty, which means that the courts have no business striking down government regulations on 14th Amendment grounds. Since the amendment does not explicitly refer to economic liberty, Bork reasoned, it does not protect it. When "the Constitution does not speak," he insisted, we are "all at the mercy of legislative majorities."

Willett takes a different view. "The Fourteenth Amendment's legislative record," he has pointed out, "is replete with indications that 'privileges or immunities' encompassed the right to earn a living free from unreasonable government intrusion."

Willett has even thrown shade in Bork's direction: "A conservative luminary, Bork is heir to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism." Willett clearly ranks individual liberty first.

Thirty years ago, when Borkian judicial deference was in its heyday, the conservative legal mainstream was largely hostile to libertarian legal ideas. That Don Willett is now championing those same ideas and is at the same time under possible consideration for a Supreme Court seat demonstrates just how far the dial has moved in a libertarian direction.