The Supreme Court Now Leans Libertarian

Roughly one year ago, shortly after the U.S. Supreme Court
concluded its 2012-2013 term, progressive legal activist Simon
Lazarus took to the pages of The New Republic to
sound the alarm against what he saw as the growing threat of
libertarianism and its “potentially seismic” influence on the
Court. The “recent surge of libertarianism among conservative
academics, advocates, politicians, and of course, voters,” Lazarus
worried, has now “begun to register at the Supreme Court.”

Indeed it had. For instance, although the outcome was also
cheered by progressives, the Supreme Court’s blockbuster 2013
ruling against the Defense of Marriage Act was heavily
flecked with libertarian legal principles, including both a
robust defense of individual liberty and a lengthy ode to
federalism. What’s more, Justice Antonin Scalia’s dissent in the
case effectively accused the majority of engaging in a bout of
libertarian judicial activism. “The Constitution does not forbid
the government to enforce traditional moral and sexual norms,”
Scalia fumed.

That libertarian trend continued apace when the Court wrapped up
its most recent term last week. Indeed, in case after case this
term, the justices issued one broadly libertarian ruling after
another, voting against aggregate limits on
campaign finance spending; in favor of a legal challenge to a

speech-restricting Ohio law; against
warrantless cellphone snooping by the police; against expansive
government privileges for
public-sector unions; and against the
executive overreach of the Obama administration. Lazarus was
definitely right to worry.

What explains the libertarian surge?
In 2010 I reported on the rise of a distinct
libertarian legal movement within the ranks of the larger
conservative legal community. Led by such pioneering figures as
Georgetown law professor Randy Barnett and Cato Institute legal
scholar Roger Pilon, the libertarians took aim at the reigning
legal orthodoxies on both the right and the left, urging broad
constitutional protections for the individual against the state in
wide areas of life. To put that in simpler terms, they came out
swinging on behalf of both
gay rights and gun rights.

That principled stance, which was backed by decades of
painstaking legal and historical scholarship by
Barnett,
Pilon, and
others, gradually began winning new converts to the cause. In
time, the libertarian legal movement began to shape
the outcome of major cases as well.

As one measure of this widening success, consider the example of
the Cato Institute’s Center for Constitutional Studies, which
weighs in on the major legal issues of the day by submitting
amicus briefs at the Supreme Court. In 2013, Cato filed 19
briefs and came out on the winning side in 15 of those cases. This
year, Cato’s win-loss record at SCOTUS was an impressive 10-1.

All that seismic libertarian activity is starting to shake
things up at the Supreme Court.