The Supreme Court’s Libertarian Moment

September/​October 2014 • Policy Report

Last summer, progressive legal scholar Simon Lazarus offered a commentary on the shifting landscape of the U.S. legal establishment.

“For decades, and as recently as Barack Obama’s first year in the White House, libertarians were marginalized within the conservative pantheon,” he wrote in the New Republic. “Now they rival, and in important areas threaten to displace social conservatives and big‐​government conservatives.”

This “upheaval” — which Lazarus concluded was “potentially seismic” — has had a discernible impact on more than just the conservative movement. Since taking office in 2009, President Obama has suffered a string of losses before the Supreme Court, racking up 20 unanimous high court defeats over the last five‐​and‐​a‐​half years. “The fact that his track record is as bad as it is in the Supreme Court,” Sen. Mike Lee (R-UT) recently said, “is yet another indication of the fact that we’ve got a president who is playing fast and loose with the Constitution.”

The Cato Institute has been at the center of this reversal. In another successful term at the marble palace at One First Street NE, the Center for Constitutional Studies went 10–1 in cases where it filed amicus briefs. This is on the heels of the Institute’s 15–3 record last term. Notably, the solicitor general’s office most recently went 11–9 on the year. “Perhaps the government would be better served following our lead on constitutional interpretation, advocating positions that reinforce our founding document’s role in securing and protecting individual liberty,” Ilya Shapiro, senior fellow at the Institute, wrote in response. Cato was the only organization in the country to file on the winning side of this term’s three highest‐​profile 5–4 cases.

The year’s most highly anticipated case was Burwell v. Hobby Lobby, in which a familyowned business filed suit challenging the Affordable Care Act’s contraceptive mandate, citing religious objections. The Court ultimately sided with Hobby Lobby. After the ruling, Cato’s vice president for legal affairs Roger Pilon identified the core issue in the case. “Religious liberty is treated today as an ‘exception’ to the general power of government to rule — captured, indeed, in the very title of the statute on which the Hobby Lobby decision rests: the Religious Freedom Restoration Act,” he wrote on Cato’s blog. “That Congress had to act to try to restore religious freedom — to carve out a space for it in a world of ubiquitous, omnipresent government — speaks volumes.”

In Harris v. Quinn, the Court ruled that government does not have the power to force public employees to associate with a labor union. At issue was an Illinois law claiming that home‐​care workers were public employees, ostensibly for one purpose: collective bargaining. The forced unionization of homebased workers has spread to nearly a dozen states, providing a substantial number of new workers — and dues — to the labor movement. “[This] decision will slow, and perhaps eventually end, that flow of funds, as workers decide they can represent their own interests and would prefer to keep their earnings for themselves and their families,” wrote Cato adjunct scholar Andrew M. Grossman.

Finally, the Court issued its latest blockbuster ruling on campaign finance with McCutcheon v. FEC, striking down the “aggregate” contribution limits on how much money any one person can contribute to election campaigns. As Chief Justice John Roberts wrote for the majority, “If the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.” Shapiro, for his part, put a finer point on the decision. “In a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office,” he wrote.

In one sense, these developments indicate the weight of Cato’s work today. But that impact is the cumulative effect of more than 30 years of intellectual debate. Over that period, the Institute’s mission has been to change the climate of ideas to one more conducive to a government of delegated, enumerated, and limited powers. Since 1989 the Center for Constitutional Studies has been a critical institution in that pursuit. As such, we may find that we are now approaching the Court’s libertarian moment.