Simon Lazarus of the Constitution Accountability Center has a provocative essay that the New Republic has entitled “Alito Shrugged: Libertarianism has won over the Supreme Court conservatives.” (Whoever writes their urls gave it the more tendentious title, “supreme-court-libertarianism-ron-pauls-bench”) Here’s a taste:
On high profile issues, the conservative bloc’s five members—Chief Justice Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito–recycle standard conservative narratives, factoids, and slogans. But the conservative movement is not a monolith. It comprises discrete factions: social and religious conservatives; business conservatives; big-government conservatives; and libertarian conservatives. Furthermore, the balance of power among these jostling ally-competitors is not static. To lump them all together overstates, in some areas, how “conservative” the Court is or is trending, while, on other fronts, seriously understating the Court’s rightward velocity.
Specifically, the “inching right” sound-bite overlooks the most obvious, and potentially seismic, current influence on the Supreme Court’s conservative bloc. This is the recent surge of libertarianism among conservative academics, advocates, politicians and, of course, voters. For decades, and as recently as Barack Obama’s first year in the White House, libertarians were marginalized within the conservative pantheon. Now they rival, and in important areas threaten to displace social conservatives and big-government conservatives. Unsurprisingly, this upheaval has shown up among court-focused conservative constituencies and advocates and begun to register at the Supreme Court. In the 2012-13 term, the leading libertarian think tank, CATO Institute, filed amicus curiae briefs in 19 cases—over 24 percent of the Court’s total docket, and wound up on the winning side in 15 of them.
[snip]
[This] rising libertarian influence is not all good news for progressives. On the contrary, the most consequential impact could be the parallel surge of support, among conservatives, for libertarian ambitions to dismantle or cripple landmarks like the environmental laws, the Affordable Care Act, and Medicaid. This is new. Until very recently, mainstream judicial conservatives, like Robert Bork, Antonin Scalia, and even Edwin Meese, had long scorned libertarian demands to roll back the New Deal-Great Society state. They branded the early 20th century Supreme Court’s anti-regulatory activism as no less “illegitimate” than the Warren-Burger Court’s alleged “liberal activist” excesses.
The Court’s conservative bloc has not wholly accepted libertarian conservatives’ invitation to junk the “New Deal settlement” that bars constitutional interference with regulatory and safety net legislation. But it came close a year ago, when the Court ruled on the constitutionality of the ACA’s individual mandate and expansion of Medicaid. Though Obamacare was upheld, the Supreme Court threatened root-and-branch dismemberment of a major progressive statute. Chief Justice Roberts pulled the Court back from that brink. But, in places, his controlling opinion chipped away at established generous interpretations of Federal authority to regulate commerce. And, in ruling that the ACA’s expansion of Medicaid unconstitutionally “coerced” states, Roberts circumscribed Congress’ power to tax and spend for the general welfare, in ways that could be cited in future challenges to laws as diverse as long-standing Medicaid provisions, the Clean Air Act, and aid to elementary and secondary education. For their part, his dissenting conservative colleagues elaborated radical libertarian anti-government ideas, thereto [sic] confined to law reviews. Most portentous, the four dissenters demonstrated readiness to leverage a few provisions, defective under entirely novel doctrines, to take a complex progressive statutory scheme down in its entirety.
My take? I wish it were so, but I think the New Republic’s headline writers overstate Lazarus’s case. And from his perspective, any “libertarian” movement, however small, looks big. But there is some truth to his claim that the Court is ending up in a more “libertarian” place than before even if the more conservative justices have likely not been “won over” to libertarianism per se. For a few reasons, the Court has become more “libertarian” than its members, as reflected in Cato’s success record:
- Justice Kennedy’s interest in “liberty” as his defining principle, combined with his swing vote makes for coalitions with the left and right sides of the Court that result in a more “libertarian Court” than are the justices themselves, taken individually.
- The fact that the conservative justices are in a more oppositionist stance vis-a-vis the Obama administration, than they were during the Bush administration, will make them more receptive to sound arguments for limiting federal power than they might used to have been.
- What might have been a natural oppositionist mindset has been greatly aggravated by the Obama administration almost going out its way to govern in a one-party fashion, likely induced to do so by Democratic party control of both the Congress and Presidency in the first 2 years of its tenure, and then strong pressure from its left flank to battle the evil Republicans in the House. (Just read the party’s $3 fund raising missives for a taste of how it has adopted this Manichean theme.) The President’s reproach of the Justices during his State of the Union Address — as they sat in the well of the House surrounded by members of his administration, and cheering, standing, applauding congressional members of his part — surely made some impression on the justices, as it did not me. Nor has the left intelligentsia endeared itself to the more conservative justices by its disdain campaign against them.
Most importantly, as Lazarus notes, the political mood of a significant segment of country does appear to be trending libertarian to some degree at the moment, due in part to the threat to constitutionally-limited government posed by the Obama administration that this segment now perceives — combined with a general war weariness that makes national security conservative dismissals of libertarian noninterventionism less politically effective. (We will see how much political mileage Chris Christie gets from attacking libertarians on national security. My guess is it hurt him.) Rand Paul’s early polling success — together with the fact that he is now self-identifying as “libertarian,” which he wasn’t before — are also leading indicators of the public mood. Recent developments on such hot-button social issues as legalizing marijuana and recognizing gay marriage also show a more libertarian trend in the body politic at the moment. We all know these trends have always influenced whether legal arguments made to the Court seem “off the wall” or “on the wall.”
So I take Lazurus’s essay to be another sign that libertarianism is trending up at the moment, perhaps more so than at any time in my lifetime. There is good reason for libertarians to worry that all this is “too little too late” in the face of the Obama administration’s success in expanding the welfare-administrative state in his first two years, and defending the gains over the past 2 years, combined with its embrace of the surveillance state that was expanded under the Bush administration.
But you can’t win, if you don’t play. And libertarians are now certainly in the game.