Epps on Reagan v. The Libertarians on the Supreme Court

Garrett Epps has a fascinating read in the American Prospect on the Roberts Court, that explores the dichotomy among conservatives on the Court: between those who came of age during the Reagan Administration (dedicated to judicial restraint), and those who have embraced the modern era (with a stronger focus on judicial engagement). Citing Mark Tushnet’s new book on the Roberts Court, Epps observes:

But what was “unprecedented” in Sebelius was not so much the mandate as the vision of the Constitution put forth by the “tough luck” crowd. Thus, as Tushnet suggests, it shouldn’t be surprising that it did not achieve total victory. To be sure, Roberts is thoroughly conservative. But his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama. Still counted among the right’s heroes in that decade was the 18th-century philosopher Edmund Burke, who did not believe in untrammeled “liberty.” To Burke, “the restraints on men, as well as their liberties, are to be reckoned among their rights.” …

“John Roberts’s constitutional philosophy was shaped before and during the Reagan years,” Tushnet argues, “and there’s no reason to think that he’s a partisan hack whose views change as new leaders come to the fore in the party.” Still, the new tough-luck libertarian philosophy resonates in the Court. Witness Roberts’s use of the “inactivity” argument to void the mandate under the commerce power; witness the four votes to void the whole ACA. Even a swing justice like Anthony Kennedy—like the younger and stunningly rigid Samuel Alito—was willing to adopt the tough-luck argument in its entirety. As Simon Lazarus recently pointed out in The New Republic, radical libertarian ideas are gaining ground in amicus briefs and lower-court opinions and finding their way into the minds of the conservative bloc.

I think this breakdown echoes what Randy Barnett has referred to as judicial conservatives v. constitutional conservatives. (See similar comments from Joel Alicea, and in an article I wrote in Public Affairs Quarterly on the Affordable Care Act and popular constitutionalism). In my own observations, even among FedSoc types,there is a divide between those of the Reagan generation who hold up Burke as a paragon of judicial virtue, and those who are more in the Cato/Institute for Justice crowd who are not afraid of courts stepping out to strike down popularly elected laws that violate the Constitution. Even at FedSoc events, when the goals of “judicial restraint” are mentioned, I look around and see not-complete agreement–even though at one point this was the gospel of Meese.

Epps also writes about Unprecedented, and repeats many of Andy Koppelman’s criticisms of Randy Barnett in the Tough Luck Constitution:

 Blackman has written a deeply researched, highly readable account of the conservative challenge to the ACA, which, as a recent law graduate, he witnessed from the inside; Unprecedented: The Constitutional Challenge to Obamacareincludes an introduction from its own hero, Georgetown law professor Randy Barnett. The intellectual godfather of the challenge, Barnett has been pleading the libertarian case to the Court for years (he argued and lost Gonzales v. Raich, in which he contended that Congress could not regulate personal possession of medical marijuana). His scholarship lays out a truly radical view of government and the Constitution. In The Tough Luck Constitution, Koppelman writes that Barnett “wants to privatize schools, prisons, courts, streets, parks, and the police.”

No one could suspect either Barnett or Blackman of crass partisanship—that is, of wanting the mandate struck down to boost the electoral chances of Mitt Romney, say, or to help Republicans retake Senate control. Both men are serious, committed scholars, and their anger arises out of principle: Roberts abdicated what they see as the proper role of a libertarian Court.

Plus this bit about fellow Volokh blogger, Sasha:

Koppelman traces the evolution of this extreme school of thought into a contemporary belief, powerful among conservative lawyers and libertarian think tanks, that any governmental regulation, and really any taxation, is not just unwise but immoral. Koppelman captures the flavor by quoting “libertarian blogger Sasha Volokh, who has argued that it would be immoral to tax people to prevent an asteroid from destroying the earth.”

The fourth book mentioned is Marcia Coyle’s thorough and comprehensive account of the Roberts Court.

Cross-Posted at JoshBlackman.com.