The Top Ten Libertarian Supreme Court Decisions

Damon Root of Reason has an interesting article giving his list of the “Top Ten Libertarian Supreme Court Decisions”:

It’s no secret the U.S. Supreme Court has often been a disappointment to libertarians….

But that doesn’t mean the High Court always gets it wrong. Here, in no particular order, are 10 Supreme Court decisions still standing where the Court put individual liberty and limited government first.

In this 2009 post, I outlined some criteria for ranking the best-ever Supreme Court decisions and made a few nominations of my own:

As I see it, the cases on the list should 1) uphold important principles, and 2) actually have had a substantial real-world impact by preventing large-scale injustices. They should also, of course, be legally correct. Criterion No. 1 rules out a large number of Supreme Court decisions that protect only relatively minor freedoms (for instance those limiting minor instances of government endorsement of religion). Criterion No. 2 rules out many cases where the Court struck down liberty-infringing laws that were already on their way out and rarely enforced. For example, Lawrence v. Texas invalidated anti-sodomy laws, a truly barbaric form of legislation that egregiously violated the liberty of gays (and occasionally a few heterosexuals). But by 2003, when Lawrence was decided, only a few states still had anti-sodomy laws and even they almost never enforced them. For this reason, Lawrence had only a modest real-world impact….

Given my criteria, the Peonage Cases of the early 1900s surely rank high, as they enabled numerous southern blacks to escape a system of forced labor and did so at a time when Jim Crow racism was at its height, and the political branches of government showed little willingness to protect black rights. Also worthy is Buchanan v. Warley (1917), which struck down racially based zoning, and helped prevent US state-imposed segregation from becoming as bad as that in South Africa under the Group Areas Act. Although it did not lead to much actual racial integration, Buchanan enabled blacks to move into many areas that would otherwise have been closed to them….

I also agree with Brad [Smith’s] nomination of Schechter Poultry v. United States (1935), which invalidated the National Industrial Recovery Act, the most sweeping effort at economic central planning in all of American history. Enacted in 1933, the NRA cartelized nearly the entire nonagricultural economy; by raising prices and wages above market-clearing levels, it also increased unemployment and lowered industrial production at a time when both were already reeling from the Great Depression… Unlike most other 1930s decisions striking down New Deal laws, Schechter was never directly overruled. And the NRA was never reenacted, though the New Deal-era Congress did go on to pass a number of ill-conceived laws cartelizing individual sectors of the economy.

Co-blogger David Bernstein and I discussed the major real-world effects of Buchanan and the Peonage Cases in more detail in this article.

Schechter and Buchanan are on Damon’s list too. Several of the other cases he picked fall short on my Criterion 2. Lawrence v. Texas (discussed above) is one example. The recent Second Amendment decisions – Heller and McDonald – are likely to have only a modest impact because they will probably end up eliminating only very extreme forms of gun regulation that only a few jurisdictions have enacted. That’s still praiseworthy. But it’s not enough to crack the top ten all-time list.

Whether you agree with my particular picks or not, the more important point is that we need to be more rigorous and systematic in our comparative evaluations of Supreme Court decisions.

UPDATE: Paul Horwitz has a lengthy post at Prawfsblawg considering the question of whether the last sentence of this post was directed only at libertarians or at everyone who ranks Supreme Court decisions:

Does “we” mean libertarians, or everyone? Does he mean that we need to be more rigorous and systematic in the comparative evaluation of Supreme Court decisions in general? Or that we need to be more rigorous and systematic when constructing “top ten” lists of this kind? Or just that libertarians in particular need to be more rigorous and systematic when constructing their own top ten lists?

Let me set Paul’s mind at ease. “We” does indeed mean everyone, not just libertarians. When expert commentators rank Supreme Court cases, they should try to be more rigorous, whether they are libertarian or not. But this general point especially applies to libertarians, because most of the admittedly few libertarian “top ten” lists out there are not as rigorous as they should be on some key points. I have not done anything approaching a comprehensive survey of similar lists by non-libertarian experts. So it’s possible the latter are on average more rigorous than the libertarian lists out there.

Paul also claims that we should focus more on which decisions are most “influential” than on which decisions are “best.” As I see it, both inquiries are useful. We should indeed try to analyze which decisions are influential, regardless of whether their influence is positive or negative. But normative evaluation of Supreme Court decisions is also valuable.

Finally, I am happy to learn from Paul’s post that “libertarianism … has certainly captured the allegiance of an ever-larger percentage of the students in my con-law classes at schools across the country.”

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