No, the Supreme Court is Not Poised to Adopt a Radical Libertarian Agenda, and Certain Commentators Should be Embarrassed for Suggesting Otherwise

Consider each of the following arguments in its historical context:

(1) It’s the 1930s. The Scottsboro Boys are represented by a known Communist Party front, beholden to the agenda Josef Stalin and his minions have dictated to the the C.P., including the creation of a separate country for American blacks in the “Black Belt.” The Supreme Court should rule against the Scottboro Boys because otherwise the Court will be well on its way to adopting the Communist agenda.

(2) It’s the 1980s. The EEOC is before the Supreme Court arguing that Title VII protects women from sexual harassment. The intellectual energy behind this claim comes from radical feminist Catherine MacKinnon, who also supports such things as “comparable worth” and a ban on indecent sexual speech. The Supreme Court should rule against the EEOC, lest it be well on its way to adopting the radical feminist aganda.

(3) It’s the 2000s. Various War on Terror detainees are challenging their detention. While the detainess have some mainstream support, much of the energy behind their challenges comes from elements of the radical left who, for example, want the U.S. Constitution to be subordinated to “international law” as elaborated by left-wing NGOs, and who in some cases adhered to an ideology most would describe as “anti-American.” The Supreme Court should rule against the detainees, lest it be well on its way to adopting the radical left’s aganeda.

Obviously, these arguments are all flawed; the strength and validity of legal arguments before the Court does not depend on who is representing the parties, nor on whether the relevant legal arguments were invented or influenced by “radicals” who have a political agenda that extends well beyond the precise issues before the Court. Nor does adopting one argument supported by “radicals” in any way obligate the Court to adopt the “radicals'” agenda in any future ligitation. Not surprisingly, the Court rejected arguments to the contrary in all of the examples above, which were made especially vociferously in examples 1 & 3.

This has not prevented a meme from developing, led by some prominent Supreme Court commentators who should know better, that if the USSC invalidates the ACA it will somehow be well on its way to adopting a broader libertarian agenda supported by some of those, including some of my co-bloggers, who helped craft the arguments against the ACA currently before the Court.

In fact, if the Court rules against the ACA, the other 90+% of the U.S. government loathed by libertarians will still be going strong.

Those Supreme Court watchers who are pushing the “liberarians are coming” meme are well aware that the Supreme Court has historically never strayed much from mainstream public and elite opinion, both of which remain decidely not libertarian. Nor is there any particular reason to believe that John Roberts, Samuel Alito, et al., are in thrall to libertarian ideology. So all we have left is the disreputable rhetorical technique of trying to asssociate in the public mind sound legal arguments with unpopular “radicals”, and to eke out a victory on the basis of the libertarian equivalent of red-baiting rather than on the merits. To say the least, such arguments do no credit to those advancing them.

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