We were unable to load Disqus. If you are a moderator please see our troubleshooting guide.

rthrth • 7 years ago

If you pick cases with libertarian goals supported by Republicans, you find that Republican Justices voted for them! Amazing! What happens when you pick cases with libertarian goals supported by Democrats, like Lawrence?

DavidBernstein • 7 years ago

(1) Lawrence in fact cited the Cato Institute's brief favorably, and I think one other libertarian brief. Of course, the opinion was written by Justice Kennedy, not by one of the liberals.
(2) Raich is a good example where the policy goals of conservatives were in conflict with how a majority of them voted. Yes, conservatives tend to like federalism, and liberals tend not to. But that yet again explains why libertarians find themselves with more in common with elite conservatives on legal issues. Libertarians typically would prefer national libertarian policy results, but would settle for interjurisdcitional variation/competition and being able to "vote with your feet". Modern liberal legalism has been enamored of centralization and nationalization of everything since the '30s.

Guest • 7 years ago

" Of course, the opinion was written by Justice Kennedy, not by one of the liberals"

In a 6-3 opinion in which all of the court's liberals joined the majority, and only the two more famously moderate conservatives did, while the three solid conservatives did not you point to one of the two moderate conservatives in the majority?
Wow.

DavidBernstein • 7 years ago

Because consistent with my post, it's the conservatives who tend to take specifically libertarian arguments seriously. Sometimes libertarians agree with liberal Supreme Court decisions, sometimes with conservative ones, but it's pretty clear which side is more likely to, for example, pay attention to a brief from the Cato Institute,. Which means, if nothing else, that libertarians have some hope of influencing the conservatives in a libertarian direction, not so much the liberals. You can argue from now to doomsday over whether Republican or Democratic nominees will, in practice, achieve overall more libertarian results. My point was that not surprisingly libertarians tend to prefer the side that respects their arguments.

Paul Horwitz • 7 years ago

I suspect that's right. Law professors, of whatever political stripe, generally care a great deal more about being taken seriously than about actual results.

DavidBernstein • 7 years ago

It's also the case that libertarians, in particular, are given to understand that their preferences have no actual effect on the election. So all things being equal, it makes sense to "root" for the side that includes your peers who think you are "nutty, interesting but often wrong" as opposed to the side including peers who think you are "nutty, irrelevant, and possibly evil."

Paul Horwitz • 7 years ago

I should first say that I thought my reply was a little snarky. Mea culpa. There is a serious point here, though, and one perhaps worth spelling out. I don't assume one way or the other that it's what you intended, but it seems to me that it's immanent in what you did say, both in your post, the comment above, and your reply to me, and has a good deal of currency for other law professors whether it applies to you personally.

As you say, sometimes libertarians agree with outcomes reached by liberal judges, and sometimes with outcomes reached by conservative judges. The discussion above has revealed some of those areas, with people then arguing about which matter more or about whether the judges reached the right result in the right "way."

So there is a way in which it does come down to which side pays libertarian law professors more respect, appears to pay more attention to them (although that may be partly cosmetic), hands out more clerkships, and is more likely to make someone a "rock star" on the lecture circuit. The same desires fuel many other law professors, of course: there are no shortage of mutual admiration and advancement networks on the liberal side--indeed, liberal networks, to my regret despite my own liberal politics, comprise the mainstream for many law professors--and even some for socially conservative law professors, who are rarer but have networks of their own. It seems to me that all of this is less about genuine influence than about feeling good and doing well.

I would count all of this as human nature and not more than a venial sin. But the part of me that has very high expectations about what it means to be a scholar and have a scholar's vocation is disappointed by it (no less when I think of FedSoc networks than when I think of displays like the "Janet Reno dance party" at ACS conventions). And while I understand that this is a descriptive more than a normative post, once I see it in that light I find it entirely descriptive and conclude that it has nothing to tell us normatively about who libertarian law professors ought to support. In this light, I'm not sure that their tendency to support GOP candidates tells us anything other than that libertarians, like other law professors, will tend, all things considered, to prefer those moves that are status-enhancing and serve as salves to their self-regard.

DavidBernstein • 7 years ago

There is something to that, but also something to the point that there is a difference between when liberal and conservative judges take "libertarian" positions. On the conservative side, if you vote for Kelo, that's it, the government stays out, there are no conservative academics arguing that the next step is that the government must now do things for people like Kelo in the future. On the liberal side, that's often not the case. It's we like free speech. We like it so much that the government has an obligation to make sure everyone gets to have it and its distributed somewhat equally. So the argument for free speech ultimately becomes an argument for upholding the Fairness Doctrine, campaign finance restrictions, etc. Let's give the poor due process rights so the government can't abuse them! Let's give the poor due process rights in such a way that makes it hard to cut the welfare state! Let's decide that due process rights means that the government has the obligation to give everyone a minimum income!

ChrisTS • 7 years ago

Is this going to another 'True Scotsman' thread?

Guest • 7 years ago

Actually, I just read your comment on Professor Somin's page where you argued that when liberal judges rule in libertarian-friendly ways they do not do it for libertarian reasons, and I think you have hit on something. I think though it might be better said that liberal justices (and politicians in my opinion) don't use the rhetoric of libertarianism much*, and this leaves libertarians somewhat rightfully skeptical of them even when the results are pleasing.

* Though I'm not even sure about this; I seem to recall liberals in substantive due process cases writing or at least signing on to some pretty high-falutin' language about personal liberty, autonomy and limited government.

David M. Nieporent • 7 years ago

A good example is the Obamacare case, which would have lost 10-0 if liberals had their way -- or, rather, the Court wouldn't even have taken the case in the first place because they viewed it as so obviously settled law that any libertarian challenge was frivolous. Conservatives -- even the ones who ultimately rejected them -- took Randy Barnett's arguments seriously.

sd • 7 years ago

In what 6-3 opinion has a libertarian argument picked up two moderate liberal votes for a conservative cause? Maybe parts of the Obamacare cases, but only because Roberts sold out everything that would have made it substantive first, certainly no whole issue I can think of in recent memory. That's exactly it. Some conservative justices cross party lines where liberty is concerned. No liberal ones do.

Ike B. • 7 years ago
In what 6-3 opinion has a libertarian argument picked up two moderate liberal votes for a conservative cause?

Snyder v. Phelps, for starters - not a 6-3 decision, but remind me: who dissented?

Ryan Radia • 7 years ago

In the same vein, see United States v. Stevens. Also 8-1, same dissenter

sd • 7 years ago

I wasn't aware that there were any party lines about crush vids, see above for why 8-1 decisions are not relevant to the analysis of how to fill the next two or so judge slots.

Ike B. • 7 years ago

You know, I hadn't noticed: there is equal support for PETA on the left and right.

The more you know...

sd • 7 years ago

Crush vids=/= hamburgers. Conservatives fail to support PETA because of their hamburgers. They usually support the humane society and other organizations dedicated to food-compatible animal welfare, rather than food-incompatible animal rights, and virtually always support laws against animal cruelty whenever gastronomy and business are not involved (I oppose all of the above considerations for animals, but I know a bipartisan consensus when I see one).

Ike B. • 7 years ago
(I oppose all of the above considerations for animals, but I know a bipartisan consensus when I see one)


And by this comment alone, I truly cannot tell that you're a conservative.

sd • 7 years ago

I'm not a conservative.

Ike B. • 7 years ago

Okay.

Guest • 7 years ago

A quick visit to the HSUS website will prove this dubious.

sd • 7 years ago

8-1 decisions are not at all close cases, we can afford to lose a justice or two in those ones before we have to worry.

Although Justice Stevens would have signed on had he still been around, he said.

Note that sidewalk protests bashing the troops aren't much of a conservative cause, in fact, they're more of a liberal cause if anything (although the WBC is itself conservative, not in the standard "patriotic way"), meaning effectively 4 conservative justices crossed party lines in the name of liberty.

Ike B. • 7 years ago
8-1 decisions are not at all close cases, we can afford to lose a justice or two in those ones before we have to worry.

Right. So another Alito's no problem for a libertarian, right?

sd • 7 years ago

As far as cases like that are concerned. Other cases may provide contrary evidence.

Guest • 7 years ago

How about Hudson v. Michigan, a 5-4 decision in which the court's liberals sided with the position filed in an amicus by Cato?

sd • 7 years ago

You seem to be wholly ignoring the "cross party lines" bit. That's a case in which no one crossed party lines on the side of liberty, except, sort of, Kennedy with his mixed concurrence ( a conservative, although I'll note the sort of is weak and insubstantive, comparable to the Obamacare party line crossing by the liberals on select statements). Yes, the court's liberals were on the libertarianish side, because criminal defense is normally a liberal cause anyway. That case doesn't alter our baseline expectation of the liberty value of a liberal, unlike, say, if a liberal or two crossed lines in a close decision against gun control or for property rights or for speech requiring money; or if a conservative or two crossed lines in a close decision for criminal defense or against drug control (we can't even keep liberals from crossing party lines against liberty there) or for less public religion in schools or for reproductive rights

Guest • 7 years ago

Liberals supporting libertarian positions doesn't alter the 'baseline expectation of the liberty value of a liberal?' That seems to indicate something wrong with your idea of liberty value....

sd • 7 years ago

The baseline expectation of the liberty value of a liberal is that they will support those libertarian causes that also happen to be liberal causes anyway.

If they fail to do so, or support those libertarian causes that are not liberal causes, this alters that baseline expectation.

Anon21 • 7 years ago

What's the point of that "of course"? He couldn't have written that opinion without the liberals' votes. And I'm sure Stevens assigned it to him to lock in his vote.

Honestly, it strikes me as very strange that you'd omit Lawrence from your list of cases in the post. Surely that's one of the most obvious examples of the Court striking down a tyrannical, anti-libertarian law in the past decade.

bernard • 7 years ago

Raich is a good example where the policy goals of conservatives were in conflict with how a majority of them voted.

Scalia is in favor of medical marijuana?

DavidBernstein • 7 years ago

Three of the five conservatives voted against the government and for Raich. In English, that's known as a "majority."

Guest • 7 years ago

Are conservatives claiming O'Connor again?

bernard • 7 years ago

Yes. It is.

But it is nice to know we're in agreement concerning Scalia and maybe Kennedy.

DavidBernstein • 7 years ago

And, moreover, from a policy perspective, it's liberals like Jane Jacob's followers and African American activists who have been the strongest opponents of redevelopment takings as in Kelo. It only became a "conservative" issue when "libertarian" groups like the Institute for Justice took it on. But there is no reason the "liberals" on the Court couldn't have voted the other way, while still maintaining their hostility to regulatory takings cases. But they didn't, which tells you something important about the posture of the liberal justices toward libertarian arguments.

ChrisTS • 7 years ago

It is a bit late, but I don't get the point, here. What, specifically, are we being told?

Ryan Radia • 7 years ago

Here are several important Supreme Court opinions from the last quarter-century that a libertarian could reasonably believe the Court's leftist wing decided properly (or would have decided properly, had it been in the majority), despite opposition from conservatives on the Court:

Lawrence v Texas
Boumediene v. Bush
Planned Parenthood v Casey
Vernonia School District 47J v. Acton
Roper v. Simmons
Romer v. Evans
Georgia v. Randolph
Berghuis v. Thompkins
Kennedy v. Louisiana
Gonzales v. Oregon

Guest • 7 years ago

This, a thousand times, this.

I mean, Gratz and Grutter? Why would a libertarian care more for them than Perry or Windsor? Or Boy Scouts over Lawrence? And thank you for pointing out Gonzales! If I own my body and own my property via the work of my body, then my right to death with dignity at my choosing should be a more fundamental right than what was at stake in Kelo.

David M. Nieporent • 7 years ago

He was listing Supreme Court decisions, which neither Perry nor Windsor were.

Also, the issue in Gonzales was not whether assisted suicide was a fundamental right, but about whether the Attorney General's interpretation of the CSA was due Chevron deference.

Guest • 7 years ago

1. You're going to see either or both Perry and Windsor there soon, want to guess who will vote how? But if you must, replace with Romer by all means.

2. Gonzalez was an example of the conservatives on the court favoring the federal government over the states (and in an area traditionally reserved to the states), though what was being targeted by the Bush administration was Oregon's right to die with dignity.

Steve • 7 years ago

The spectacle of Scalia, in his Gonzales dissent, decreeing by fiat what counts as the "legitimate practice of medicine" ought to leave libertarians, and federalists of all stripes, awfully cold.

Guest • 7 years ago

If I ever read a case in which I thought I saw Scalia's conservative Catholic philosophy intruding into his judging, it was there and then...

Ryan Radia • 7 years ago

Although agency deference is admittedly not a core focus of mainstream libertarianism, most libertarian lawyers I know take a dim view of Chevron deference. See, e.g., http://www.cato.org/pubs/re.... The Court's holding in Gonzales effectively narrowed the scope of Chevron deference, advancing not only a liberty-friendly legal doctrine but a libertarian policy outcome as well.

Guest • 7 years ago

More than that. The case involved the conservative justices favoring the use of a regulatory reinterpretation of a federal law (whose authority is based on the commerce clause no less) to stymie state experimentation in an area of longtime state concern.

David M. Nieporent • 7 years ago

I don't think Chevron deference itself is unlibertarian, but there are arguments to be made -- many in your link -- for the notion that Chevron deference leads to unlibertarian outcomes. I am sympathetic to those arguments, although I think that too much sympathy to them requires that one turn a blind eye to the pre-Chevron regulatory regime, which was hardly a bed of roses.

But of course the validity of Chevron deference wasn't at issue in the Oregon case -- just the application of it to a specific situation.

Libertymike • 7 years ago

Is there any textual support in the Declaration of Independence for the proposition that the king's jurists are to defer to the king's men in conflicts by and between an individual and the king?

sd • 7 years ago

Perry and Windsor discuss whether a state subsidy (civil marriage) should be expanded to sex-neutrality (while still subsidizing married over single and polyamorous people with the tax code and whatnot) or remain as is. Gratz and Grutter discuss whether a race-conscious state subsidy (special consideration in public university admissions) should remain as is, be altered in some way downward or be abolished (although the last was not adopted). In which do you think there is more mileage for libertarianism?

Ultimately,there is very little the government can do to threaten suicide, it can only threaten the "dignity" part, which is meaningless nonsense. By contrast, if the government wants to take your land, then dagnabbit your land is gone.

Guest • 7 years ago

"In which do you think there is more mileage for libertarianism?"

Either neither, or both. The reason to be for Gratz and Grutter (well, for and against one) is that you think the state should treat folks equally. Ditto the gay marriage cases.

"it can only threaten the "dignity" part, which is meaningless nonsense. By contrast, if the government wants to take your land, then dagnabbit your land is gone."

Actually your first sentence is nonsense, and a great many people value their dignity over mere property.

sd • 7 years ago

"he reason to be for Gratz and Grutter (well, for and against one) is that you think the state should treat folks equally. Ditto the gay marriage cases."
The state is never going to "treat folks equally." That entails, by the way, treating the guilty and innocent equally.

What's important is that the state provides as little unwanted attention to the innocent as possible. Removing the concept of race from government discourse is one less thing for the government to pay attention to. Removing the concept of marriage is another, expanding that concept one more thing for the government to pay attention to.

"Actually your first sentence is nonsense, and a great many people value their dignity over mere property"
The correct response would have been to define dignity before pandering to the platitudes of persons not currently under substantial property threat.

Guest • 7 years ago

"Removing the concept of race from government discourse is one less thing for the government to pay attention to"

That's ridiculous, the government (in this case the schools) will just have to pay attention to something else (some other criteria).

"The state is never going to "treat folks equally." That entails, by the way, treating the guilty and innocent equally."

That's also silly, you know what we are talking about (discriminatory treatment based on some aspect like race or gender or sexual orientation, not behavior). In both cases we are talking about differential treatment by the government (don't forget we're talking about state schools in Grutter and Gratz, so why wouldn't your response there be to get rid of the schools rather than the affirmative action, as your response in the gay marriage area is to get rid of marriage?).

"The correct response would have been to define dignity"

Wouldn't the correct response for you to have been to find out what dignity meant before denouncing it as nonsense?

sd • 7 years ago

"
That's ridiculous, the government (in this case the schools) will just have to pay attention to something else (some other criteria)."
Or! Or! It can fire the guy whose job it was to make up the quotas.

"That's also silly, you know what we are talking about (discriminatory treatment based on some aspect like race or gender or sexual orientation, not behavior)"
"Sexual orientation discrimination" in practice is based on behavior.

"(don't forget we're talking about state schools in Grutter and Gratz, so why wouldn't your response there be to get rid of the schools rather than the affirmative action, as your response in the gay marriage area is to get rid of marriage?).?"
Because the schools doing one less thing is actually a marginal improvement with a fixed number of seats. The expansion of the class single people's taxes have to subsidize is not. We can work for marginal improvements where they are available.

"

Wouldn't the correct response for you to have been to find out what dignity meant before denouncing it as nonsense?"
You're assuming I haven't heard conflicting and meaningless things.