The Volokh Conspiracy
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Damon Root's new book Overruled: The Long War for Control of the U.S. Supreme Court is an impressive account of the conflict over judicial review between conservatives and libertarians. Most books about the recent history of judicial review and constitutional theory focus on the opposition between conservatives and liberals, Democrats and Republicans. By contrast, Root focuses primarily on the increasingly important faultline between libertarians and conservatives.
Libertarians and conservatives have cooperated on issues related to federalism, gun rights, and property rights. But they have also sharply disagreed on the role of judicial review in protecting the rights of gays and lesbians, limiting wartime executive power, and constraining police and prosecutors. As the leading writer on legal issues for Reason, the prominent libertarian publication, Root has covered many of these issues for years.
Root effectively traces libertarian-conservative disagreements over judicial review to their origins in the late nineteenth and early twentieth centuries, when Progressives attacked nineteenth century natural rights-based jurisprudence for what they regarded as unjustified judicial activism in protecting both economic liberties and noneconomic ones. As he notes, many early Progressives opposed not only the Court's enforcement of economic freedoms in cases like Lochner v. New York, but also judicial efforts to protect free speech and enforce other noneconomic freedoms. For example, leading Progressive Justice Louis Brandeis praised the Court's notorious decision to uphold mandatory sterilization of the mentally ill in Buck v. Bell as an example of cases where judges should give state governments free reign to "meet..modern conditions by regulations" (though he gradually came to support judicial protection of some other civil liberties).
Beginning in the 1920s and 1930s, political liberals gradually shifted towards supporting strong judicial intervention to protect noneconomic rights, even as they repudiated similar protection for economic freedoms and property rights. But, ironically, the original Progressive defense of judicial nonintervention was taken up by post-New Deal conservatives, including such notable legal theorists as Judge Robert H. Bork.
Root explains how the persistence of this tradition of "judicial restraint" on the conservative right has led to clashes between conservatives and libertarians in recent years. Even in some cases where the two groups agree on the outcome, there are important divergences over preferred rationales. For example, libertarians and conservatives worked together to expand judicial protection for Second Amendment rights in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). But, in the latter case, many conservatives opposed the libertarians' efforts to revive judicial enforcement of the Privileges or Immunities Clause of the Fourteenth Amendment, fearing that this step would open the door to a new wave of "judicial activism."
Root's book is probably the most thorough account of the libertarian-conservative debate over judicial review so far. The clash between the two may rise in importance, as libertarianism becomes a more important part of the political landscape. Younger Republicans are, on average, significantly more libertarian than their elders. The same is likely true of younger right of center elite lawyers and legal scholars. At the same time, it is unlikely that social conservatives will give up without a fight. Even as they fight over their differences, the two groups will also have to find some way to continue cooperating on the issues that unite them, especially since the legal left remains powerful and influential.
I do have two reservations about his otherwise excellent analysis. First, for some reason Root largely ignores the issue of same-sex marriage, which is one of the most important constitutional questions where libertarians and conservatives have differed in recent years. Though there are some exceptions in both camps, libertarian lawyers and legal scholars (including many here at the Volokh Conspiracy) have generally supported striking down laws banning same-sex marriage, while conservatives have forcefully opposed it. The issue is both important in and of itself, and an important indicator of the differences between the two camps.
Second, I think Root is too quick to characterize modern judicial conservatism as focused on judicial restraint. It is true that, since the 1960s and 70s, conservatives have devoted a great deal of time and effort to denouncing liberal "judicial activism." But conservative judges such as William Rehnquist and Sandra Day O'Connor have also long advocated stronger judicial enforcement of property rights and constitutional limits on federal power.
Root describes famed conservative legal theorist Robert Bork as "a principled advocate of judicial minimalism." This was indeed an important element of Bork's philosophy. But Bork was also a strong advocate of constitutional originalism, which sometimes requires aggressive judicial invalidation of legislation that goes against the original meaning of the Constitution. In his 1989 book The Tempting of America, Bork advocated judicial restraint, but also described New Deal-era decisions expanding congressional authority over the economy as "judicial activism" because they gave the federal government more power than it was entitled to under the original meaning.
Bork never seriously confronted the tension between his advocacy of originalism on the one hand, and his support for judicial deference to the democratic process on the other. For a long time, the same was true of many other judicial conservatives. Like Bork, they simultaneously advocated both originalism and judicial deference without giving much thought to possible contradictions between these commitments. The rise of libertarianism is one of several factors that have forced conservatives to devote greater thought to the issue in recent years.
As with their liberal counterparts, conservative and libertarian jurists have also sometimes been influenced by short-term political considerations, as well as principled commitments to constitutional theory. Just as liberals began to be more supportive of judicial review when the judiciary became more liberal in the post-New Deal period, conservatives became more open to it as the courts became more conservative over the last thirty years.
The debate between libertarians and conservatives is likely to continue, as will the related but distinct conflict between originalism and judicial deference to the democratic process. Root's work is a valuable guide to both the past and the potential future of these important issues.