In the January/February issue of the Washington Monthly, attorney Michael O’Donnell has a piece on the differences between judicial conservatives and libertarians. It’s part of a review of two new books on the Supreme Court: Overruled: The Long War for Control of the U.S. Supreme Court, by a senior editor at Reason magazine, Damon Root, and American Justice 2014: Nine Clashing Visions on the Supreme Court by University of Baltimore Professor Garrett Epps.
O’Donnell’s conclusion might be surprising, but he tags Justice Clarence Thomas as the best exemplar of libertarian judicial philosophy now serving on the Court.
The justice whom Root cites most approvingly is Clarence Thomas. Thomas is not strictly a libertarian: he is a reactionary, who wishes to revisit and undo whole swaths of American constitutional law. But he takes the narrowest view of the government’s commerce power; dissented the most forcefully in Kelo; and called for Slaughterhouse to be overruled: libertarian touchstones all. Like libertarians, Thomas thinks little of traditional doctrines like judicial restraint or respect for precedent. And his preoccupation—one might even say fetish—with creating a rigidly principled jurisprudence reveals a methodology that is consistent with, if not identical to, judicial libertarianism. Libertarians may sound modest and reasonable, but the fact that Thomas is their man on the Supreme Court speaks volumes. They are not reasonable. The one consolation is that their extreme views and unwillingness to compromise will prevent them from achieving results. Ask Thomas. He usually dissents alone.
One of the most interesting observations in the article is that “libertarians embrace an activist judiciary; they do not want courts to defer to state and federal laws. Laws mean government, so libertarians want courts to shrink government by striking down laws.”
It’s obviously hard to categorize Justices as either conservative or libertarian, but it is at least illuminating to see which Justices are most pleasing to libertarians.
You can read the whole piece here.