January 15, 2015 | Washington Monthly
What is the difference between judicial conservatives and judicial libertarians? You will not hear many libertarians protest the Roberts Court’s recent trend to give corporations First Amendment rights, such as the right to donate to political campaigns (Citizens United) and the right to oppose contraceptive coverage on religious grounds (Hobby Lobby). Conservatives and libertarians sparred bitterly over turf and tactics in the litigation to recognize Second Amendment rights for gun owners. Yet they had the same ultimate goal, and when the Supreme Court handed down District of Columbia v. Heller in 2008, both groups rejoiced. And, of course, conservatives and libertarians joined forces in one of the most ambitious Supreme Court campaigns in recent memory: the unsuccessful effort to bring down the Affordable Care Act. Hoping to keep the two factions under the same umbrella, the Federalist Society adopts an ecumenical posture. All who hate government are welcome.
But there is much for a libertarian to dislike in modern conservatism. The conservative legal movement’s godfather, Antonin Scalia, is embarrassingly intolerant, and out of touch with young people on social issues. In addition, judicial conservatives have a bad habit of saying one thing and doing another—such as calling for a modest Supreme Court while upending precedents and striking down liberal laws with aplomb. If there is one thing a libertarian cannot abide, it is hypocrisy. Moreover, sometimes libertarians’ philosophy leads them to liberal rather than conservative positions. In 2003 the Cato Institute filed an amicus brief attacking Texas’s anti-sodomy statute in the watershed case Lawrence v. Texas. If the Supreme Court agrees to review the constitutionality of state bans on gay marriage this term, expect libertarians again to favor gay rights.
Damon Root, a senior editor at Reason magazine, has published a book that traces the differences between judicial conservatives and libertarians, and advances the libertarians’ cause. Overruled: The Long War for Control of the U.S. Supreme Court is a sober, well-researched, and thoughtful case for the libertarian point of view on judicial issues ranging from gun control to economic regulation. Like most libertarians, Root cares more about principle than orthodoxy; hence his book is no partisan screed. Yet he is representative of libertarians in another way as well. His positions sound reasonable until you begin thinking through their implications, at which point you realize just how radical they are.
Take, for instance, the dean of judicial libertarians, Richard Epstein, who teaches at the University of Chicago Law School. Root discusses Epstein’s work in favorable terms at several points in his book. Epstein believes that the Fifth Amendment’s “takings” clause—“nor shall private property be taken for public use, without just compensation”—should apply not merely to the government’s use of eminent domain, but to regulation writ large. In other words, the government does not merely owe a homeowner compensation if it seizes her house in order to build a road. It also owes a business money if its regulations have the effect of “taking” the business’s profits. In this way, Epstein would essentially tax the regulatory state out of existence. Environmental rules, workplace-safety regulations, progressive taxation, and labor protections would cease to exist. Epstein also doesn’t think much of the civil rights laws.
This type of extremism reveals a key problem with libertarians. They care more about themselves than about the community. Libertarians resent paying taxes, and they hate red tape and overreaching government. Fair enough: who doesn’t? But then again, sometimes taxes fund important social goods and even red tape can serve a purpose. If you want to operate a factory in the United States, you have to meet the standards set out in the Clean Air Act, as well as the detailed regulations promulgated by the Environmental Protection Agency. Doing so is costly and burdensome. But our society deems these costs and burdens outweighed by having clean air for all to breathe. This sort of trade-off is the foundation of Western social democracy. Some regulations are overbearing and some are pointless. The answer is to improve them, not to scrap all regulation. If libertarians get their way, there will be no more red tape, but also no more sunsets: just toxins and smog.
The touchstone of judicial libertarianism is the long-discredited notion of “liberty of contract.” Libertarians wish to revive it. The Constitution says nothing on the topic, but in the early twentieth century the Supreme Court briefly made it a constitutional guarantee. In 1905 the Court struck down a New York law that prohibited bakeries from working their employees more than sixty hours per week. Liberty of contract, the Court reasoned in Lochner v. New York, is implicit in the due process clause of the Fourteenth Amendment. The bakers and their employees had a right to work as many hours as they wanted. (Imagine the implications of this theory in a modern context: underpaid and nonunion laborers performing dangerous work in a slaughterhouse have a right to work without safety equipment if they choose.) Lochner is widely reviled among modern legal scholars—except for libertarians. The Supreme Court overruled it in the 1930s, and the word “Lochner” is now shorthand for flagrant judicial activism.
But libertarians embrace an activist judiciary; they do not want courts to defer to state and federal laws. Laws mean government, so libertarians want courts to shrink government by striking down laws. In Root’s telling, judicial restraint is nothing more than a kickball passed between the left and the right at opportune moments. Thus between the 1910s and the 1930s, when Lochner prevailed, liberals favored restraint. They did not want the courts inventing rights like liberty of contract and using them to invalidate workplace regulations. Conservatives who did so were the activists. Yet during the 1960s and 1970s, conservatives took up the cause of judicial restraint, objecting to the activist Warren Court’s discovery of privacy rights in the Fourteenth Amendment in cases involving contraception and abortion. The most famous modern articulation of judicial restraint belongs to Chief Justice John Roberts, who said during his confirmation hearings in 2005 that the job of a judge is merely to call balls and strikes.
Root has a point: judicial restraint, like most common law doctrines, is a fickle friend, lionized in one case and discarded in the next. But again, that does not mean we should dispense with it altogether. Root disdains judicial restraint because it keeps the courts from shrinking government, but he does not seriously grapple with its history or purpose. It is a bedrock principle of the separation of powers that the unelected branch of government (the courts) generally ought to defer to the elected branches (the legislature and the executive) when it comes to the wisdom of laws. This gives citizens recourse: they can vote elected officials but not life-tenured judges out of office. Restraint also bolsters an independent judiciary, one of the cornerstones of democratic government, by insulating the courts from politics.
The courts are badly politicized as it is. Garrett Epps, a law professor at the University of Baltimore, a reporter for the Atlantic, and a contributor to this magazine, has just published a survey of the Supreme Court’s most recent term, called American Justice 2014. The book is structured around nine key cases for each of the nine justices. It is an excellent, concise snapshot of the Court as it settles into its current configuration, with strong profiles in particular of Samuel Alito and Elena Kagan. Epps’s persuasive conclusion is that the Court has become a tarnished and mistrusted institution:
On the Roberts court, for perhaps the first time ever, the party identity of the justices seemed to be the single most important determinant of their votes. No Republican justice was consistently to the left of any Democrat or vice versa. Over the years, journalists and editors agonized about whether news accounts of court decisions should identify the judges by their party or by the name of the president who appointed them. After 2014, failing to do so might seem like journalistic malpractice.
An activist judiciary is a polarized one. Epps notably takes as his epigraph for American Justice 2014 a quote from the great New York judge Learned Hand, who decried the disappearance of reasonable centrism from American public life. Root likewise invokes Hand, but libertarian judicial philosophy is not exactly a wellspring of moderation.
Root traces the battle over judicial restraint to a notorious 1873 Supreme Court decision known as the Slaughterhouse Cases. The decision concerned a group of butchers who challenged a Louisiana law that, ostensibly for health reasons, relocated and consolidated the New Orleans slaughterhouse industry into a state-controlled monopoly. The butchers sued, claiming that the law violated their rights as small-business owners. It was the Supreme Court’s first chance to interpret the new Fourteenth Amendment, passed in the wake of the Civil War and guaranteeing citizenship, due process, and equal protection to all people born or naturalized in the United States. But the Court read the great amendment narrowly and rejected the butchers’ claims. Justice Stephen Field dissented and unwittingly became the patron saint of the libertarian legal movement.
Note what has happened here: libertarians claim as their hero a judge who from the outset saw the Civil War amendments as a shield with which white people could protect their property. Of course, the amendment is broadly and grandly worded, and encompasses far more than the antislavery intentions that propelled it into existence. And most observers today agree that Slaughterhouse was wrongly decided. But it is distasteful to raise up Justice Field as the Fourteenth Amendment’s champion: Field, who voted with the majority in Plessy v. Ferguson that separate is equal; Field, whose majority vote in the Civil Rights Cases restricted the Fourteenth Amendment’s ability to target the Ku Klux Klan; Field, who outrageously suggested in Slaughterhouse that Louisiana had treated the white butchers as “slaves” under the Thirteenth Amendment. Had Field gotten his way in both Plessy and Slaughterhouse, the Fourteenth Amendment would perversely stand for property rights but not freedom from racial discrimination.
If Field is Root’s hero, then Oliver Wendell Holmes Jr. is his villain. This again is a strange choice. Holmes is regarded across the political spectrum as one of the great justices in the history of the Supreme Court. His elegant opinions on subjects from contracts to torts to habeas corpus did more for the development of American common law than those of perhaps anyone since John Marshall. And, alongside Louis Brandeis—another justice whom libertarians disdain—Holmes helped establish a strong First Amendment. Freedom of speech being the most elemental of rights, one would think that libertarians would embrace Holmes. But they dislike him because he was the Court’s leading proponent of judicial restraint; he famously dissented in Lochner. Courts should not dream up constitutional rights where none exist and interfere with legislatures, said Holmes. Yes, they should, libertarians retort.
Root completely misses the reason that Holmes is revered. Unlike most proponents of judicial restraint, Holmes did not let his politics interfere with his judging. It is well and good for a social conservative like Robert Bork to call for a restrained court when the effect of this is to uphold state laws banning abortion and contraception. Those are results that he wanted, making it impossible to tell whether his methodology was in service of his politics or vice versa. But Holmes was the closest thing to an apolitical justice that we’ve had. Root does not mention this, choosing to associate Holmes with the Progressive Movement, but the great jurist’s own economic views were distinctly libertarian. The fact that he refused to write them into constitutional law when he had a chance in Lochner reveals him to be a jurist of rare principle.
This is not the only inconsistency in judicial libertarianism. In a real sense it is a movement on a collision course with itself. Root calls for activist courts to strike down laws that hamper individuals’ freedom of contract. But states pass far more laws than Washington does. And states are supposed to be the laboratories of democracy; libertarians profess to believe in local rather than centralized government. But Root seems to think the more laws the courts invalidate, the better. Here we approach the nihilistic side of libertarianism: less government is better government, wherever the trims are made. Libertarianism, so principled, so carefully thought out, does not appear to have grappled with the conundrum of using courts to shrink local government.
Are there any libertarians on today’s Supreme Court? In certain cases all the Court’s conservatives display their libertarian badges. Kelo v. City of New London (2005) was such a case: it involved the outer limits of the takings clause. The Court held that the city in question was free to use its eminent domain power to take property from private owners and give it to other private owners as part of a broad redevelopment scheme. The decision is indeed troubling, and outside the Court many from the left as well as the right denounced it. As for particular justices, Epps shows that in some areas Anthony Kennedy has libertarian tendencies, especially in the field of gay rights. But his libertarianism can take on a ridiculous, caricatured quality, as when he asked counsel during the Heller oral argument whether the right to bear arms arose out of “the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that.” Libertarians do not want Kennedy holding their flag.
The justice whom Root cites most approvingly is Clarence Thomas. Thomas is not strictly a libertarian: he is a reactionary, who wishes to revisit and undo whole swaths of American constitutional law. But he takes the narrowest view of the government’s commerce power; dissented the most forcefully in Kelo; and called for Slaughterhouse to be overruled: libertarian touchstones all. Like libertarians, Thomas thinks little of traditional doctrines like judicial restraint or respect for precedent. And his preoccupation—one might even say fetish—with creating a rigidly principled jurisprudence reveals a methodology that is consistent with, if not identical to, judicial libertarianism. Libertarians may sound modest and reasonable, but the fact that Thomas is their man on the Supreme Court speaks volumes. They are not reasonable. The one consolation is that their extreme views and unwillingness to compromise will prevent them from achieving results. Ask Thomas. He usually dissents alone.