Law & Government

From Bork to Willett

Is the conservative legal movement going libertarian?


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

It was no exaggeration. Bork routinely preached the virtues of a judiciary that's deferential to lawmakers, 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 conservatives were ready to follow. Judicial deference, or restraint, became a rallying cry on the legal right.

That philosophy still holds sway in some quarters today. But it's increasingly under fire from legal thinkers who want the courts to play a more aggressive role in defense of individual liberty and against overreaching majorities.

Case in point: In September, President Donald Trump nominated Texas Supreme Court Justice Don Willett to serve on the U.S. Court of Appeals for the 5th Circuit.

Willett, who also appeared on Trump's shortlist of potential Supreme Court candidates, is a rock star in legal circles and a popular social media presence. If successfully confirmed to the 5th Circuit, he would immediately rank as one of the most libertarian-minded federal judges in the country.

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

On the surface, the two jurists exhibit some similarities. They're both "conservative" and have ties to the Republican Party. But they differ in more fundamental 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 Patel v. Texas Department of Licensing and Regulation, "but a written constitution is mere meringue if courts rotely exalt majoritarianism over constitutionalism." (Disclosure: Willett favorably cited my book in his Patel opinion.)

According to Bork, the 14th Amendment offers zero constitutional protection for economic liberty, which means the courts have no business striking down government regulations on 14th Amendment grounds. Willett takes a different view, writing that the amendment's "legislative record is replete with indications that 'privileges or immunities' encompassed the right to earn a living free from unreasonable government intrusion."

Willett has even explicitly 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 freedom first.

Thirty years ago, when Borkean judicial deference was having its heyday, the conservative legal mainstream was largely hostile to libertarian legal ideas. That Don Willett is now championing those same ideas while under consideration for a federal judgeship demonstrates just how far the dial has moved in a libertarian direction.