Who Would You Like To See As The Next Supreme Court Justice?
Before long, there will be some vacancies on the Supreme Court. Americans who care about the relentless expansion of governmental power that’s turning us from a nation of free, self-reliant citizens into a gaggle of supplicants should start thinking about the kind of justice they’d like to see on the Court.
More precisely, they should start thinking about the kind of judicial philosophy they’d like to see.
The nation’s population of “progressives” (i.e., people who believe, contrary to all reason and evidence, that America needs still more government dictates) has had little if any occasion to lament the justices nominated by Democratic presidents. The “liberal” bloc on the Court hardly ever disappoints them.
In contrast, libertarians, conservatives, constitutionalists, and people who just dislike the Nanny State have often lamented the nominees of Republican presidents, including Earl Warren, William Brennan, Sandra Day O’Connor, David Souter, and most recently, John Roberts. Those justices often put their stamp of approval on federal powers that would have left the Founders aghast.
It is imperative that we avoid making similar mistakes in the future. I believe that the most effective way of identifying nominees who won’t turn tail when pressured to vote for unconstitutional power is to find judges who have expressed a coherent philosophy favoring liberty.
That means more than having written a few opinions favoring conservative litigants or giving talks at Federalist Society meetings. It means a principled commitment to what Georgetown law professor Randy Barnett calls “the presumption of liberty” in his magisterial book Restoring the Lost Constitution.
Judges like that are sadly few in number, but in a recent decision in an occupational licensing case, Justice Don Willett of the Supreme Court of Texas wrote a remarkable concurring opinion that ought to put him near the top of the list of candidates for the next open seat on the Court.
The case, Patel et al v. Texas Department of Licensing and Regulation involved a challenge by several “eyebrow threaders” to state regulations that imposed utterly pointless costs on them. Although the court struck down the regulations, thus freeing the individuals to operate their small businesses as they deem best, Justice Willett took the opportunity to pen a concurrence that leaves absolutely no doubt about his judicial philosophy.
“This case,” he wrote, “concerns far more than whether Ashish Patel can pluck unwanted hair with a strand of thread. This case is fundamentally about the American Dream and the unalienable right to pursue happiness without curtsying to government on bended knee. It is about whether government can connive with rent-seeking factions to ration liberty unrestrained and whether judges must submissively uphold even the most risible encroachments.”
Justice Willett believes that Americans should not have to curtsy to politicians and bureaucrats whenever they want to pursue an honest calling. He also believes that judges should not sit by like potted plants while politicians and bureaucrats whittle away at a right that’s as fundamental as any – the right to make an honest living through commerce.
Willett’s opinion is a devastating rebuke to the idea, going back to “progressives” like Oliver Wendell Holmes, Jr., that judges should defer to whatever laws and regulations the political system coughs up. It is also a rebuke to the statist idea that our rights and liberties come from government. “Liberty is not provided by government; liberty preexists government,” he writes.
He’s correct, and it is the duty of judges to invalidate laws that needlessly impinge upon liberty. Doing that calls for an approach to jurisprudence that Institute for Justice attorney Clark Neily calls “judicial engagement” in his 2013 book Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.
Neily doesn’t want activist judges who make law and impose social costs through their decisions; nor does he want supine judges who avoid conflict with the legislative and executive branches by meekly deferring to their supposed expertise in writing laws and regulations.
Instead, he argues for “engaged judging,” which means
“ensuring that the government has a valid reason for restricting people’s freedom and that it exercises that power with at least a modicum of care. It means not turning a blind eye when government pursues constitutionally illegitimate ends, such as promoting anti-competitive interests….”
Many judges can be counted on to build their opinions around beliefs (often inculcated during college and law school) about inherent governmental powers and compelling state interests. So it’s a delight to read an opinion such as Willett’s where the judge understands that the reason for government is to protect life, liberty, and property.
But wouldn’t a liberty-oriented philosophy be fatal to the confirmation prospects for Willett or any judge like him?
No doubt, many Senate Democrats would feign horror at a judge who quotes Frederic Bastiat in an opinion. They have been trained to believe that favoring property rights, the rule of law, and limited government means being for “the rich” and against “the little guy.” Their statist view of the world (not to mention their electoral success) depends on the false belief that big, intrusive government is what helps and protects the “little guy.”
Nothing could be further from the truth, as the Patel case and so many others illustrate. Big, intrusive government is usually what impedes individuals who have ideas and ambition and want to improve themselves; often it is well-heeled interest groups that have lobbied for those legal impediments.
Willett hits the bulls-eye in quoting Frederick Douglass, who wrote in his autobiography about the sheer joy he felt when he was finally free to earn his own money. Since the 1930s, the Court has generally looked at economic freedom as constitutionally unimportant, deserving of scant protection in the face of progressivism’s penchant for controlling ever more of our lives. Douglass would have seen that as a retrograde movement – away from the freedom he sought.
So, no, I don’t think that nominating a judge with a deep commitment to liberty and limited government would be futile. Presumably, the defenders of the omnipotent state on the Senate Judiciary Committee would try to besmirch Justice Willett or anyone like him, but it is crucial that we try to fill Supreme Court vacancies with jurists who actually believe in the American Dream.
Originally posted on Forbes.com.