So says the subtitle of provocative new essay in The New Republic by my friend and sometime antagonist Simon “Si” Lazarus. Si’s argument boils down to the following:
- Legal experts are puzzled. The “most conservative” Court issued major rulings this term supporting gay rights and declined to toss out the University of Texas’s racial preferences, among other iconoclastic opinions.
- The public seems to think that the Court is either liberal or “middle of the road,” while the media line is that the Court is still “inching to the right.” What’s going on?
- The Court may well be “inching right,” but the “right” isn’t made up solely of social conservatives or business types. There’s also libertarians!
- It’s precisely this libertarian flavor of conservatism that’s now ascendant, as evidenced by, among other things, Cato’s success this year. [Cabin the issue of whether libertarians/Cato are part of the Right, the conservative movement, or anything else that better fits on a two-dimensional political spectrum.]
- This rising libertarian influence isn’t all good news to progressives, despite our alliance over same-sex marriage. Remember, it’s they, even more than traditional conservatives, who are leading the charge to roll back the New Deal, Great Society, and everything else that’s good and holy in the modern progressive pantheon.
Well, it’s nice to be noticed, I guess, and while there are kernels of truth here – see my piece in the Huffington Post earlier this month – Si does overstate the point. In other words, yes, a combination of Justice Kennedy’s faint-hearted libertarianism, some outlandish assertions of federal power at the Supreme Court, and a president who wants to govern despite constitutional checks and balances, does put us in a bit of a “libertarian moment.” But we have a long way to go before we undo the damage of the last 75 years’ worth of bad legal doctrine
As Ilya Somin puts it:
Even if conservatives and libertarians prevail in every single one of the cases [Lazarus] mentions, the federal government would still retain massive regulatory authority over almost every aspect of the economy and society. Obviously, it’s possible to characterize any decision to strike down or limit “regulatory legislation” on structural grounds as “junking the New Deal settlement.” But that’s like saying that any decision enforcing even modest constitutional limits on law enforcement amounts to junking the criminal justice system.
Still, we shouldn’t pooh-pooh libertarian achievements even if we recognize that libertarian legal nirvana isn’t just over the horizon. As Randy Barnett comments:
… the political mood of a significant segment of country does appear to be trending libertarian to some degree at the moment, due in part to the threat to constitutionally-limited government posed by the Obama administration that this segment now perceives — combined with a general war weariness that makes national security conservative dismissals of libertarian noninterventionism less politically effective. … Recent developments on such hot-button social issues as legalizing marijuana and recognizing gay marriage also show a more libertarian trend in the body politic at the moment. We all know these trends have always influenced [the Court] whether legal arguments made to the Court seem “off the wall” or “on the wall.”
So I take Lazurus’s essay to be another sign that libertarianism is trending up at the moment, perhaps more so than at any time in my lifetime. There is good reason for libertarians to worry that all this is “too little too late” in the face of the Obama administration’s success in expanding the welfare-administrative state in his first two years, and defending the gains over the past 2 years, combined with its embrace of the surveillance state that was expanded under the Bush administration.
But you can’t win, if you don’t play. And libertarians are now certainly in the game.
Moreover, whatever’s going on behind the scenes at the Supreme Court, it’s not that “Alito Shrugged,” as the article’s title would have it. However much the Court becomes libertarian – as a whole, on average, in fits and starts – I don’t think that Justice Alito, let alone Justice Scalia, or Justice Ginsburg for that matter, is more libertarian than he was five or ten or twenty years ago.