Reporting about U.S. Supreme Court debates often revolves around disagreements between liberal and conservative voting blocs. But Damon Root, senior editor at Reason magazine and Reason.com, says most debates actually involve competing concepts of judicial activism and judicial restraint. Root has written a book on the topic titled Overruled: The Long War for Control of the U.S. Supreme Court. He discussed his work with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: This really is something that is not necessarily along the lines of Left versus Right, or conservative versus liberal. Tell us about this divide between those who want to see an activist or engaged court and those who think the court should be very restrained.
Root: It’s a debate that [has] really been around since the founding of the country, but it’s a debate that in my book I trace particularly from the end of the Civil War through the present day, and what we see is that sometimes it’s left versus right, and left is on the side of judicial deference. That was the case during the Progressive era, and during the New Deal, when liberal judges and justices, they really wanted the courts to defer to the economic policy judgments of lawmakers.
But then, in the mid-20th century, liberals became much more interested in the court striking down the decisions of policymakers in the realms of civil rights and civil liberties. So we saw liberals very much behind an aggressive Supreme Court in a case like Brown v. Board of Education.
And then in the last 30 years or so, we have seen conservatives really take up the cause of judicial restraint, and that’s in large part a response to the abortion ruling and Supreme Court decisions recognizing our right to privacy.
So then what I look at in the book is within the right, libertarians and conservatives, they are dividing over this question, where with conservatives, following the lead of people like Robert Bork favoring a much more deferential court, and libertarians really wanting the courts to aggressively police the government, police the other branches, and strike down what they see as government overreach.
Kokai: It sounds as if this is an area in which traditional conservatives and those who are libertarians really do have a very different view about what the courts ought to do. How have they ended up this way when they used to have been ideological allies on so many other fronts?
Root: Well, there’s very much an alliance between libertarians and conservatives that’s ongoing right now. But there is this fundamental disagreement, and when I say conservatives, I’m really referring to the Robert Bork school of legal conservatism that puts great emphasis on judicial deference. In his book, The Tempting of America, Robert Bork wrote, “In wide areas of life, majorities are entitled to rule if they wish, simply because they are majorities.”
And he called that the first principle of our system, and the libertarian response is, well, the first principle is individual rights, and majority rule comes second. Those visions don’t clash in every case, but in some very fundamental ways, they really are at odds. So we see this alliance holding together sometimes but then really butting heads other times.
Kokai: Reason magazine, for those who are unfamiliar, is a libertarian magazine, so I would suspect that you and folks who work with you would like to see the courts be active when it comes to protecting these individuals rights, rather than just defer to the lawmaking braches.
Root: The libertarian legal view is basically that the Constitution is a liberty document. It protects a broad range of individual rights, both written down in the Constitution, but then also unemunerated rights, and that also the Constitution places strict limits on government power. And libertarians very much want to see the courts act as a check on the other branches of government and really have a fundamental problem with Bork’s framing of majority rule first above individual rights.
Kokai: So how has this split between conservatives — or the Bork conservatives, as you have described them — and libertarians played out on some of the big issues of the day?
Root: A real surprising way it played out was in the debate over the Second Amendment and gun rights. In 2010, the Supreme Court heard this case called McDonald v. City of Chicago. The question was: Does the Second Amendment prevent Chicago from banning handguns? Two years before, in a case called Heller, the Supreme Court had overturned Washington, D.C.,’s handgun ban, and said the Second Amendment protects an individual right to keep and bear arms.
So McDonald is the follow-up case. The Second Amendment applies against the federal government — Washington, D.C., is a federal enclave. Does it also apply against the states? So that brings in the 14th Amendment, which is the constitutional provision whereby the Bill of Rights [is] applied to the states.
And what we saw in that case was that libertarian lawyers were the ones pushing for the gun rights campaign. A lawyer named Alan Gura, a libertarian lawyer in Washington, D.C., he argued that the original meaning of the privileges or immunities clause of the 14th Amendment protects a broad range of rights — economic rights, but also clearly protects the Second Amendment.
He met widespread resistance from conservative organizations — the Family Research Council, a very, very prominent social conservative group. They said, “Don’t listen to his arguments. Reject his arguments. Leave those precedents on the books. Don’t go down this road. It would lead to libertarian and liberal judicial activism.”
And then on the Supreme Court level, Justice [Antonin] Scalia in particular was very resistant, let’s say. [He] was, in fact, kind of hostile to Alan Gura during the oral argument. Scalia said, “Why are you trying to overturn all these precedents? Why are you taking us into these uncharted waters?”
And Scalia said, “What we should really do is follow the established method, which is substantive due process,” and he said, “I have acquiesced in that method.” And that was an interesting statement because Scalia had thundered and really come out swinging against substantive due process on many previous occasions, and he saw that as liberal judicial activism.
And so here he was presented with this opportunity to repudiate something that he had in fact repudiated, and to follow the original meaning of the 14th Amendment in a clear fashion, but it was a fashion that also led into some libertarian areas of the courts protecting unwritten economic rights. And he and the other conservatives really kind of balked at that.
And so Scalia, [Samuel] Alito, [Anthony] Kennedy, and [John] Roberts all took this more traditional conservative route. And Justice Clarence Thomas, he agreed with them in the outcome, that the Second Amendment wins, but he reasoned to a different conclusion.
He said that the libertarians have the better argument, and it should be the privileges or immunities clause. So we saw Thomas really side with the libertarians [and] the other conservatives take more of the Borkian approach in that case.
Kokai: Since you’ve mentioned the justices, those who follow the Supreme Court often talk about a liberal bloc and a conservative bloc, and then Anthony Kennedy can kind of go either way. When it comes to this particular split, are there particular justices, whether it’s Clarence Thomas or another, who would be more likely to take this libertarian argument? Or is it hard to tell, or are they all more now traditional conservatives?
Root: It depends on the issue, but in a few areas Thomas is very strongly in what we could call the libertarian camp. He would consider himself a conservative, not a libertarian, but he definitely is on the same page with the libertarian legal movement on issues such as the original meaning and the proper interpretation of the commerce clause, … Congress’ power to regulate interstate commerce, the takings clause, eminent domain and property rights cases, such as the Kelo case in 2005.
Thomas filed a dissent in that case that libertarians just love. And then also this question of the 14th Amendment and its original meaning, and the privileges or immunities clause. And those are three key areas that the libertarian legal movement has devoted a lot of time and resources to litigating, to championing its point of view, and Thomas has been on their side in those.
So he is, in those areas, the strongest libertarian ally on the court right now. And Kennedy, as you say, it’s sort of hard to predict what he’s going to do. Broadly speaking, Kennedy has been often described as libertarian because … he’s liberal on some social issues, and more conservative on others, so I wouldn’t say that his legal thinking matches what the libertarians do, but in some of the outcomes, Kennedy is a little libertarian. But then again, in the property rights case, Kelo, he sided with the government there, and libertarians have never really forgiven him for that, for that vote.