Simon Lazarus of the liberal Constitutional Accountability Center is correct to point out that the Supreme Court’s decisions have trended in a somewhat libertarian direction over the last year. I also agree with many of co-blogger Randy Barnett’s explanations for why this has happened. In addition to the cases cited by Lazarus, it’s also worth noting that the recently concluded Supreme Court term saw important victories for property rights in the Koontz and Horne cases.
At the same time, however, Randy is correct to point out that Lazarus’ case is overstated. For example, Lazarus exaggerates when he writes that last year’s Obamacare decision “came close” to “accept[ing] libertarian conservatives’ invitation to junk the ‘New Deal settlement’ that bars constitutional interference with regulatory and safety net legislation.” Even if the challengers had prevailed on every point at issue in that case, Congress would still have sweeping authority to regulate virtually any “economic activity,” and state governments would have even greater regulatory authority than that. Similarly, Lazarus exaggerates when he contends that cases like the DC Circuit decision restricting the presidents’ power to make “recess” appointments are part of an agenda of “doctrinal resets aimed at crippling federal regulatory power.” Even if conservatives and libertarians prevail in every single one of the cases he mentions, the federal government would still retain massive regulatory authority over almost every aspect of the economy and society. Obviously, it’s possible to characterize any decision to strike down or limit “regulatory legislation” on structural grounds as “junking the New Deal settlement.” But that’s like saying that any decision enforcing even modest constitutional limits on law enforcement amounts to junking the criminal justice system.
It’s also worth noting that many of the Court’s recent “libertarian” decisions rely on swing votes cast by Justice Anthony Kennedy. He does indeed have somewhat of a libertarian streak, evident, for example, in his jurisprudence on gay rights, and his linking of federalism and liberty in Bond v. United States. But Kennedy is very far from consistent in that regard. He also provided key swing votes for two of the most significant anti-libertarian Supreme Court decisions of the last decade, Gonzales v. Raich, and Kelo v. City of New London. Raich, to be sure, was a 6-3 decision. But Kennedy provided the crucial fifth vote necessary to uphold the majority’s sweeping interpretation of Congress’ Commerce Clause powers (Scalia concurred separately, and would have upheld the law only under the Necessary and Proper Clause). Raich is a crucial case because, among other things, it ruled that Congress has the power to regulate any “economic activity,” expansively defined to include any action involving the “production, distribution, and consumption of commodities.” Kelo allows either state or federal governments to take property for virtually any reason that isn’t “pretextual.” It’s possible that Kennedy regrets his votes in one or both of these cases. But so far there is little if any proof that he does. Kennedy is certainly willing to move constitutional doctrine in an incrementally more libertarian direction in some areas. But he’s an unlikely agent of a revolution to “junk” or “cripple” the New Deal settlement.
That said, it is certainly true that libertarian ideas on constitutional law have gained some ground over the last twenty to thirty years, both in the Court and in the broader legal community. We are still a long way from the point where property rights and federalism constraints on congressional authority are given the same respect by the judiciary as other constitutional limits on government power. Judicial protection for economic liberty outside the field of property rights is weaker still. But there has been incremental progress on many of these fronts. Most important, the idea that federalism, constitutional property rights, and economic liberties deserve strong judicial protection is now at least taken seriously, even by many commentators who continue to oppose it. We are very far from any kind of libertarian revolution in Supreme Court jurisprudence. But, as Randy puts it, libertarian constitutional thought is now “certainly in the game.”
UPDATE: To avoid misunderstanding, I should emphasize that libertarian constitutional thought is not limited to federalism, property rights, and economic liberties. While there is some internal disagreement, most libertarians also favor strong judicial enforcement of criminal defendants’ rights, “noneconomic” liberties, limits on executive power, and constitutional restrictions on government discrimination on the basis of race, sex, ethnicity, and (more recently) sexual orientation. But on these issues, libertarian thought is less divergent from either modern Supreme Court jurisprudence or conventional post-New Deal liberalism. While there is much disagreement about the proper scope of judicial review of noneconomic rights and structural constraints on government power other than federalism, most liberals (and many conservatives) recognize that there is at least some major role for judicial enforcement of these aspects of the Constitution. By contrast, at least until the last two to three decades, the dominant conventional wisdom opposed almost all judicial enforcement of federalism and “economic” rights. Perhaps the most distinctive element of libertarian constitutional thought is the challenge it offers to this part of the New Deal world-view.
Few libertarian scholars advocate judicial enforcement of “absolute” property rights or economic liberties, any more than freedom of speech or freedom of religion get absolute judicial protection. But they do challenge the view that “economic” regulation should be the object of special sweeping judicial deference not granted to other forms of legislation. For readers who may be interested, I discuss the issue of differential deference in greater detail in this paper, focusing on property rights.