Back in March 1987, Prof. Herman Schwartz wrote an article for The Nation that bears striking resemblance to Rosen’s N.Y. Times piece (to be clear, I’m not accusing Rosen of plagiarism, or even of ever having read Schwartz’s article; it’s just that 1987 seems like a time of similar hysteria over perceived libertarian influence on conservative judicial thought prompted, as in 1987, by a forthcoming vacancy on the Court, and by the nomination of a libertarian (Bernard Siegan instead of Janice Brown) to a Court of Appeals seat. Of course, Siegan got voted down, and the next USSC nominee was the very unlibertarian Robert Bork):
A new breed of theorists is calling for vigorous judicial activism in defense of–what else?–property rights. Concurrently, the pre-New Deal Supreme Court, which struck down federal and state laws against union busting, child labor and other abusive business practices, is back in favor. . . . This neo neoconservatism has been most thoroughly developed by University of Chicago Law professor Richard Epstein, one of the administration’s most influential legal advisers. . . Epstein argues that those clauses of the Constitution that forbid the government to take over private property except for public use and wit fair compensation, and that bar the states from excessive interference with contracts, where intended to ensure that private property remained virtually sacrosanct. He then reads those clauses as rendering unconstitutional most welfare, environmental, is stating gift tax, renewal, zoning and then control laws, along with almost every other piece of social legislation of the past two centuries. Unlike most constitutional lawyers, he thinks the Court decided correctly in Lochner v. New York, when, in the name of property and contract rights, it struck down an attempt to limit working hours for bakers. . . . Such judicial activism is usually condemned in the administration circles. . . . Nevertheless, this new faith in an activist judiciary is gaining ground among some on the right who are normally its harshest critics.
Schwartz’s concerns about a libertarian takeover of the federal judiciary were, alas, seriously premature, as are, undoubtedly, Rosen’s. In fact, though libertarians are a growing (though still miniscule) presence in legal academia, their political influence has probably decreased where it counts. Republican honchos are more concerned than ever about their religious conservative base, and the relevant folks in the Justice Department–who in the Reagan years were a highly intellectual group that took ideas, including libertarian ideas very seriously–are undoubtedly very bright, committed conservative lawyers, but show, as far as I can tell, few signs of similar intellectual ferment (in practicalterms, e.g., other than McConnell, where are the Borks, Winters, Easterbrooks, Ginsburgs, Williamses, and Posners on the judicial nomination radar screen?)
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