In a short post six months ago, I outlined what I called the “libertarian choice” on the judicial role: (1) embrace a principled originalism that has libertarians and judicial conservatives as natural allies (even as they engage in productive conversation over their inevitable differences), or (2) advocate an unprincipled judicial activism (whether under the rubric of “judicial engagement” or some other label) that has libertarians become de facto allies of progressive judicial activists. Given what I see as the alignment of forces both now and in the foreseeable future, the latter choice, I observed, would earn libertarians the Marxist label of “useful idiots” for the Left.
In a tweet last week responding to a tweet by libertarian Clark Neily that was critical of judicial conservatives, I repeated my position that “libertarian supporters of judicial activism” make themselves “useful idiots for progressive statists.” Reason’s Damon Root has undertaken to dispute my position, but his post shows that he simply misses my point. That’s understandable, as my tweet, due to space limitations, didn’t include a link to my post. (On the other hand, I’m fairly certain that I elaborated the same charge in a debate with him some months ago.)
Root’s first point is that “conservative advocates of judicial restraint” join progressives in broadly deferring to progressive democratic enactments. I don’t dispute the point, broadly stated. But most of us who are “conservative advocates of judicial restraint” see judicial restraint as supplementing originalism, not as substituting for it. (See, e.g., the “Third” point in this essay of mine). That means that, unlike progressives, we will recognize clear limits on governmental power. So, insofar as Root is concerned about deference to progressive democratic enactments, he still ought to prefer judicial conservatives to judicial progressives.
Root also observes that Neily was “one of the libertarian lawyers who conceived, litigated, and won the landmark Second Amendment case known as District of Columbia v. Heller.” Yes, he was—and Heller is a model of what libertarian and conservative originalists can achieve together. It thus supports my observation that libertarians have a far more promising alliance with conservatives than with progressives.
Root acknowledges that “the libertarian legal movement has joined forces with liberals in certain areas of the law, such as the fight over gay rights.” Oddly, the one example he comes up with is the 2003 decision in Lawrence v. Texas. Perhaps the Court’s ruling against state marriage laws one month ago in Obergefell v. Hodges escaped his attention.
What is particularly appalling to many of us judicial conservatives about the arguments that lots of libertarians made in support of the challenges in Obergefell is that those arguments (a) were embarrassing examples of pseudo-originalism (which didn’t garner a syllable of support from any justice) (b) made on behalf of a position that (as Justice Thomas explains in his Obergefell dissent) isn’t even genuinely libertarian. These libertarians embraced a claim that three of the most aggressive living-constitutionalist ever—William O. Douglas, William Brennan, and Thurgood Marshall—treated as frivolous when they joined the dismissal of the appeal “for want of a substantial federal question” in Baker v. Nelson (1972). In doing so and in celebrating the ruling in Obergefell, they provided protective camouflage for one of the most brazenly lawless rulings ever.
What Obergefell shows is that there is no progressive rewriting of the Constitution that is beyond the bounds of the possible if something matters to the Left and there are five or more living-constitutionalists on the Court. The list of possible living-constitutionalist innovations is endless and includes lots of things that are hostile to the libertarian vision: e.g., mandatory taxpayer funding of various leftist causes; a right to welfare payments; mandatory equalized spending for public-school districts; “hate speech” restrictions on free speech; the outlawing of school choice; and an overruling of Heller. Especially now that the lower courts have been packed with Obama appointees, it seems a strange time for libertarians to think that advocating an aggressive judicial role is going to yield results they like.
Perhaps Root and other libertarians imagine that a five-justice libertarian majority will suddenly emerge on the Supreme Court. Or perhaps they tell themselves that they’re admirably standing on supposed principle (even as their positions seem highly opportunistic). In any event, by misdirecting their ire against conservative originalists, they provide significant de facto support for progressive judicial activism. This is what makes them useful idiots for the Left.