Free Minds & Free Markets

A Libertarian Litigator Dons the Judge's Robes

Clint Bolick, a co-founder of the Institute for Justice, was for years one of the libertarian movement's most successful trial lawyers.

Clint Bolick, a co-founder of the Institute for Justice, was for years one of the libertarian movement's most successful trial lawyers. In 2002, his advocacy for school choice culminated in the U.S. Supreme Court's ruling in Zelman v. Simmons-Harris, in which Cleveland's pioneering school voucher program was upheld. Three years later, he argued and won Granholm v. Heald, in which the Court struck down protectionist state laws that banned the direct sale of wine to consumers from out-of-state wineries.

In 2007, he joined the Goldwater Institute in Phoenix, Arizona, as vice president for litigation. But now Bolick is shaping the law from the other side of the bench.

In 2016, Republican Gov. Doug Ducey appointed him to the state Supreme Court. Under the terms of the Arizona Constitution, a justice must stand in a judicial retention election two years after being appointed, and then stand again every six years after that. In November 2018, Bolick kept his seat with 71 percent of the vote.

The libertarian litigator has already distinguished himself as a justice. In Arizona v. Maestas (2018), for instance, he wrote a significant concurring opinion in the case of a valid medical marijuana card holder arrested by Arizona State University police for having a small amount of pot in his dorm room. The case turned on whether a 2012 law forbidding the possession of marijuana on state college campuses could be squared with the Arizona Medical Marijuana Act of 2010, which legalized and regulated pot possession. State officials had urged the court to defer to the legislature's 2012 actions.

"When the judiciary fails to interpret and enforce constitutional rights and limits," Bolick responded, "it shrinks from its central duty and drains the Constitution of its intended meaning." The medical marijuana card holder prevailed.

Arizonans might also appreciate something else about the recently retained jurist. "When I took on the cause of tattoo studios and their free speech rights, I vowed that if we won I would get inked," Bolick told me, referring to a past case. "We did win and, much to my wife's chagrin, I got inked. The tattoo is a scorpion, which is on my right index finger. I've typed everything I've ever written with [that] finger. I thought it would be appropriate, now that I'm an official desert resident, to have a desert creature on my typing finger. I am not aware of any other state Supreme Court justices who are visibly tattooed, but I hope to start a trend."

Photo Credit: Gage Skidmore

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  • Ken Shultz||

    I maintain that the First and Second Amendments aren't only guarantors of our legal rights in this country, they're also what makes our government distinctively American (and worth fighting for).

    A judge getting the First and/or Second Amendment tattooed would make one hell of a statement!

    Or maybe the 9th:

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    He could even use the original script:

  • Qsl||

    Americanism has very different meanings depending on who you talk to. And even with the 1st and 2nd, it is still possible to have a perfectly viable police state. The country had already faltered on many of its promises early on. In that respect, it is hardly unique.

    More important than law is to push back and hold authority to account. Without that, it is just words.

  • C. S. P. Schofield||

    With the First and Second amendment, as written (as opposed to as weaseled around over the subsequent 200+ years) you cannot have a viable Police State for long. Either the Police State will eliminate the First and Second Amendments (if not, indeed, the entire Constitution) or welders of the First and Second Amendments will eliminate the Police State.

  • Ken Shultz||

    British commonwealth countries--without the First and Second Amendments--have different laws and different norms governing religion, speech, and guns, and, for that matter, the ways in which those laws and norms differ from ours are largely attributable to the presence of our First and Second Amendments.

    And it isn't just guns! The ways in which, for instance, libel laws in Australia, Canada, and the UK differ from ours are largely attributable to the need for our laws to accommodate the First Amendment. Hell, the Supreme Court upheld the First Amendment protection for violent threats against the president if they can be defended as hyperbole.

    "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

    ----Watts v. United States

    Again, it's the First and Second Amendments that make our government distinctively American. Having a presidential system certainly isn't as distinctive as prohibiting both which laws the legislature can't pass in regards to speech and religion and and which rights can't infringed in regards to guns.

  • Ken Shultz||

    P.S. I didn't say you couldn't have a police state despite the First and Second Amendments--although I doubt you could maintain a ubiquitous police state in harmony with the First and Second Amendments for long.

  • DajjaI||

    If he were truly a libertarian judge, he would support execution by woodchipper.

  • Arizona_Guy||

    Arizona in the news!

  • PCGUY||

    I just heard that Judge Bolick will be applying Janus ruling to the Arizona State Bar which could be considered unconstitutional mandatory unions charging members $500/yr.

  • M.L.||

    Great that he is a judge. Been impressed by the IJ for years.

  • Quo Usque Tandem||

    A possible replacement for an ailing US Supreme Court Justice?

  • EscherEnigma||

    Scorpion, huh?

    Anyone else immediately think of the parable about the scorpion and the frog?

    Interesting message to send.

  • dangfitz||

    I imagine him as a replacement for Breyer. We would replace the current worst Justice with the best ever.


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