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Supreme Court

All articles with the "Supreme Court" tag.

Published: Thu, 29 Sep 2016 00:00:00 -0400

Last Build Date: Thu, 29 Sep 2016 16:46:11 -0400


Can Trump Be Trusted on Supreme Court Appointments?

Mon, 26 Sep 2016 14:27:00 -0400

(image) In May Donald Trump released a list featuring the names of 11 federal and state judges that he said he would consider nominating to the U.S. Supreme Court if he's elected president. On Friday Trump expanded that list, adding 10 more names to the mix. According to Trump, "this list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court."

From the standpoint of the conservative legal movement, it's a solid list. It's also not bad from the standpoint of the libertarian legal movement, as it contains such names as 7th Circuit Judge Diane Sykes, the author of an important opinion protecting the First Amendment right to record police officers in public; 10th Circuit Judge Neil Gorsuch, the author of a recent dissent attacking judicial deference to government regulatory agencies; and Texas Supreme Court Justice Don Willett, the author of what I've described as "one of the most libertarian legal decisions I've ever read."

But since this is Donald Trump we're discussing here, the real issue is not the caliber of the list. The real issue is whether or not Trump can be trusted to keep his word and actually stick to the list if he's elected. Can Trump be trusted? Let me put it this way. Throughout U.S. history, presidents have overwhelmingly nominated the sort of justices that they think will vote to uphold their respective agendas. Thus Franklin Roosevelt nominated friends of the New Deal while George W. Bush nominated friends of the so-called war on terror.

What is Trump's agenda? Among other things, Trump has come out in favor of the government censoring the internet, shuttering houses of worship, depriving religious minorities of due process and equal protection, forcibly confiscating private property, gutting libel laws in order to make it easier to silence journalists, ordering U.S. forces to commit torture and other war crimes, and imposing a nationwide "stop and frisk" scheme in order to "take the gun away." For those of you keeping score at home, that means that Trump—at a minimum—has endorsed government infringements on the principles contained in the First Amendment, the Second Amendment, the Fifth Amendment, the Eighth Amendment, the 10th Amendment, and the constitutional doctrine of limited and enumerated executive powers.

Now consider Trump's SCOTUS list. The most impressive names on that list are all judges who have distinguished themselves by voting to enforce constitutional and/or statutory limits against illegitimate and overreaching government power. Is Trump likely to nominate the sort of justices who will enforce such limits against Trump's own power? I sure wouldn't bet on that.

Related: Is SCOTUS a Good Reason to Support Trump? Libertarian and Conservative Legal Experts Weigh In

Federal Judge Upholds Ban on Unlicensed African Hair-Braiding, Says Courts Must Show 'Great Deference' to Government Regulations

Thu, 22 Sep 2016 12:50:00 -0400

In the state of Missouri it is illegal to offer African-style hair-braiding services to paying customers without first obtaining a cosmetology license. To obtain that license, would-be African-style hair-braiders must spend thousands of dollars and complete over 1,500 hours of state-sanctioned education. However, none of the state's licensed cosmetology schools actually teach anything about African-style hair-braiding. In other words, the licensing requirement is an arbitrary and unnecessary obstacle that prevents would-be African-style hair-braiders from earning a living in a totally harmless occupation. By contrast, to become a licensed emergency medical technician in Missouri, a job that legitimately impacts public health and safety, it requires just 100 hours of education.

Unfortunately, none of that mattered this week when Judge John M. Bodenhausen of the U.S. District Court for the Eastern District of Missouri issued an opinion upholding Missouri's ban on unlicensed African-style hair-braiding. "This case," Judge Bodenhausen declared, "illustrates the great deference that federal courts must show to government regulations under the rational basis standard."

The rational-basis standard, also known as the rational-basis test, has its origins in the great vogue for judicial deference that swept the courts during the Progressive and New Deal periods. In the 1933 case of Nebbia v. New York, for example, the Supreme Court upheld the conviction of a New York grocer named Leo Nebbia. His crime? Selling milk during the Great Depression for less money than the minimum price set by the state's Milk Control Board. "A state is free to adopt whatever economic policy may reasonably be deemed to promote the public welfare," declared the majority opinion of Justice Owen Roberts. Never mind whether or not the regulation in question actually protects or serves the health, welfare, or safety of the public. What matters is that the government says that it does. So long as "the laws passed are seen to have a reasonable relation to a proper legislative purpose," Roberts said, the courts should defer to that regulation and assume that "the requirements of due process are satisfied." Put differently, if lawmakers and government lawywers claim to have a "rational basis" for the regulation, the courts are supposed to whip out the rubber stamp.

The problem with this approach is that it violates the original meaning of the Constitution. Specifically, it violates the original meaning of the 14th Amendment, which was enacted to prevent state officials from violating economic liberty in precisely this sort of fashion. As Republican Rep. John Bingham of Ohio, the primary author of Section One of the 14th Amendment, told the House of Representatives, the amendment was enacted in part to protect "the constitutional work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil." Judicial deference turns that constitutional safeguard on its head.

The time is long overdue for the federal courts to heed Bingham's words and stop deferring to nonsensical economic regulations in the name of the misguided rational-basis test.

Future Supreme Court Picks

Wed, 21 Sep 2016 00:01:00 -0400

Hillary Clinton and her fellow progressives shout things like "Health care is a right!" They've also said that education, decent housing and child care are "rights." The United Nations goes further. Its bureaucrats declared that every person has a "right" to rest and leisure, food, clothing, housing, "necessary" social services, free education, periodic holidays with pay and protection from unemployment. Wow. I guess Abe Lincoln, Thomas Edison and Mark Zuckerberg were denied basic human rights. Clinton and the U.N. busybodies are wrong. Health care, housing and food are not "rights." They are "gifts" bestowed by politicians. These "gifts" violate other people's rights because politicians take from people to give to favored groups. When America's founders talked about rights, they had something else in mind. In the Bill of Rights, each right is a right to not be meddled with, a right to be free from government—the right not to have your speech abridged, your religion banned, your guns taken or your property searched without a warrant. The founders were tired of kings and dictators bossing them around. In their new country, they wanted to vote for presidents and other officials. But they also knew that over time even elected officials lust for more power. So they wanted clear limits on what those officials could do. They created three branches of government—to check each other. "Gridlock is a feature, not a bug," says Ilya Shapiro, editor-in-chief of the Cato Institute's Supreme Court Review journal. "The founding system was not to make government more efficient. It was meant to pass policies that have large agreement that's sustained across time." Because presidents think Congress is failing when it doesn't pass legislation they like, they nominate Supreme Court justices who may give them leeway. Franklin Roosevelt tried to increase the size of the Court to squeeze in more justices who supported his programs. George W. Bush nominated his own White House Counsel. The media call President Obama's current nominee, Merrick Garland, "a centrist." But he is "centrist" only in that he sides with Democrats who want to ban guns and Republicans who want government left free to do most anything in Guantanamo Bay. Garland repeatedly supports increased government power—and fewer checks. Shapiro went to Chicago Law School when Obama was a professor there. He says Obama understands the limits the Constitution places on presidents but ignores them. He ignores them so often that the Supreme Court has overruled Obama unanimously more often than any modern president. When Congress rejected Obama's immigration plan, he just imposed it via executive order. The Supreme Court overturned that, but the final vote blocking it was close, 4-4. But what will the next court do? I hope Hillary Clinton doesn't get to replace Justice Scalia because she sounds a lot like President Obama. On her website, she says things like, "If Congress won't act, I will ask the Treasury Department... to use its regulatory authority!" Donald Trump is no better. He says he'll impose the death penalty on anyone who kills a cop. "But the executive has no say over that," points out Shapiro. Presidents cannot pass laws. They execute laws passed by Congress. Congress is supposed to reject legislation it doesn't like. That's its job. Most legislation is bad. Former New Mexico governor Gary Johnson understands that. The Libertarian presidential candidate promises to only appoint judges who will ask whether any power or program proposed by the government can be found in the Constitution. One judge he mentions as a possible Supreme Court pick is Fox commentator, Judge Andrew Napolitano. "I'm flattered by that," says Napolitano. "Johnson would clearly choose a small government, maximum individual-freedom court." Gary Johnson understands that the Constitution keeps us free by restraining government. Hillary Clinton and Donald Trump, like many politicians, treat the Constitution as an annoying obstacle. It is an obstacle to[...]

Hillary Clinton vs. Merrick Garland

Fri, 16 Sep 2016 11:35:00 -0400

(image) Poor Merrick Garland. First, Republican lawmakers refused to act on Garland's nomination to replace the late Justice Antonin Scalia on the U.S. Supreme Court. Now, with the presidential election less than two months away, Democratic candidate Hillary Clinton is dropping hints that if she wins Garland can kiss his SCOTUS chances goodbye forever.

The bad news for Garland came yesterday, reports Bloomberg, during a morning radio appearance by Clinton. "Clinton would 'look broadly and widely for people who represent the diversity of our country' if she has the opportunity to make 'any' Supreme Court nominations, she said in a radio interview that aired Thursday on the Tom Joyner Morning Show," Bloomberg notes.

The Garland nomination was never that popular among progressives and Clinton seems to think she can rally those troops into voting for her by disavowing Obama's pick. Why is Garland unpopular on the left? Although he has a reputation as a legal liberal, Garland has never written a major opinion on the hot-button issue of abortion. That silence has caused prominent abortion rights advocates to wonder about Garland's commitment to their cause. Other critics, meanwhile, have raised a different sort of issue. As one progressive pundit complained, "yet another white guy."

Furthermore, as I've previously noted, Garland's long record of judicial deference in favor of police and prosecutors, as well as his long record of judicial deference towards wartime executive power, "surely came as a disappointment to that segment of the Democratic big tent that still cares about civil liberties." But then again, that unhappy group already has Clinton's own dismal civil liberties record to worry about.

Related: Is SCOTUS a Good Reason to Support Trump? Libertarian and Conservative Legal Experts Weigh In

Today in History: Socialist Eugene Debs Sentenced to Prison for Giving Anti-War Speech

Wed, 14 Sep 2016 11:45:00 -0400

(image) On this day in 1918 federal authorities sentenced the socialist leader Eugene Debs to serve 10 years in federal prison for violating the Espionage Act, a 1917 law that made it a federal offense to interfere with U.S. involvement in World War I. How did Debs run afoul of this notorious law? He delivered an anti-war speech to a crowd of leftists out for an afternoon picnic in Canton, Ohio.

Debs' speech was plainly protected by the First Amendment to the U.S. Constitution. But constitutional fidelity was not exactly a defining characteristic of the Woodrow Wilson administration, which helped to craft the Espionage Act and then used the vile law to silence political opponents. To make matters worse, the U.S. Supreme Court also failed to take the First Amendment at its word. Writing for the Court in the unfortunate case of Debs v. United States, Progressive hero Justice Oliver Wendell Holmes Jr. brushed aside Debs' First Amendment arguments and upheld his preposterous conviction.

By 1919 World War I was over and U.S. troops began returning home. But Debs still languished in prison, his health faltering. President Wilson, whose health was in even worse shape, came under pressure to pardon the ailing Debs. But Wilson flatly refused to free the political prisoner. As H.L. Mencken, an outspoken critic of what he termed the "Wilson hallucination" put it, "confronted, on his death-bed, with the case of poor Debs, all his instincts compelled [Wilson] to keep Debs in jail." President Warren G. Harding finally pardoned Debs in 1921.

The case of Debs v. United States went down nearly a century ago, but it still contains some useful lessons for the present day. Foremost among them is the lesson of what can happen when the government and the courts stop respecting the First Amendment.

Why Hillary Clinton Refuses to Say Whether Merrick Garland Will Be Her SCOTUS Pick

Fri, 09 Sep 2016 12:50:00 -0400

(image) Democratic presidential candidate Hillary Clinton has had lots of things to say about the future of the U.S. Supreme Court. "I have a bunch of litmus tests" for potential SCOTUS picks, Clinton has said. Foremost among those tests is the willingness of her judicial nominees to overturn the Supreme Court's 2010 defense of free speech in Citizens United v. Federal Election Commission.

But there is one major future-of-SCOTUS issue on which Clinton has been conspicuously silent. As Bloomberg's Greg Stohr puts it, "there's still a big question she hasn't answered: Would she re-nominate Merrick Garland to the open seat on the Supreme Court?"

Merrick Garland, who most recently served as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, was of course nominated by President Barack Obama back in March to replace the late Justice Antonin Scalia. But Garland's nomination has languished in the Senate ever since, with Republican lawmakers refusing to hold hearings or bring his name to a vote. And Clinton, Stohr observes, "has studiously avoided saying whether she would renominate Garland for the vacancy if it is still pending next year."

Why the silence? One possible explanation is that Garland is not at all the sort of liberal jurist that many of Clinton's supporters would like to see replace Scalia. Remember that the news of Garland's nomination did not exactly set progressive hearts aflutter. The president of the National Organization for Women questioned Garland's commitment to abortion rights, for example, while left-wing pundits complained that it was "extremely disappointing" to see the nomination of more "white men."

Garland's nomination surely came as a disappointment to that segment of the Democratic big tent that still cares about civil liberties. That's because Garland's record, as I've previously described it, "reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power." In other words, Garland is not quite the dream candidate of the ACLU; nor is he the dream candidate of the Black Lives Matter movement.

So it's not really that much of a surprise to find Hillary Clinton keeping quiet on whether or not she'll re-up Merrick Garland's nomination if she wins the election. Clinton probably sees no upside in reoffending the various constituencies that found Garland to be such a disappointing judicial pick in the first place.

Gary Johnson on SCOTUS: 'We Don't Have Litmus Tests, But Kelo Really Stands Out'

Thu, 01 Sep 2016 11:20:00 -0400

(image) Libertarian presidential candidate Gary Johnson recently sat down with conservative journalist Guy Benson for a wide-ranging interview. Among the topics they discussed was the future of the U.S. Supreme Court.

Benson began by asking Johnson about recent comments made by his running mate, former Massachusetts Gov. William Weld, in which Weld named Justice Stephen Breyer and Judge Merrick Garland as the sort of judicial candidates that the Libertarian ticket would be considering.

"Bill has backed away from naming those names," Johnson told Benson.

That disavowal will no doubt come as a relief to many libertarians. This is the same Stephen Breyer, after all, who joined the pro-government majority in the eminent domain debacle Kelo v. City of New London. It's the same Stephen Breyer who dissented in the gun rights cases D.C. v. Heller and McDonald v. Chicago. The same Stephen Breyer who frequently votes to grant broad leeway to police and prosecutors in Fourth Amendment cases. As for Merrick Garland, President Obama's languishing pick to replace the late Justice Antonin Scalia, his record, as I've previously noted, "reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power." Breyer and Garland are not exactly libertarian legal heroes.

According to Johnson, what Weld was really trying to accomplish by name-checking Breyer and Garland was to "point out...that we were really going to be bipartisan, that we really were trying to bring together both sides of this." Nevertheless, Johnson conceded to Benson, "I think Bill if he had it all to do over again he would not have named names."

Benson then asked Johnson about his opposition to imposing "litmus tests" on SCOTUS nominees. "Would you have any litmus tests for a Supreme Court justice on cases like Kelo, for example, cases that really matter to libertarians, libertarian principles?" Benson asked.

"Yeah I think Kelo is one that really does stand out," Johnson responded. "Although we don't have litmus tests, but Kelo really stands out as a litmus test, in my opinion."

Most libertarians will be cheered to hear that. Unfortunately for Johnson, he spoiled the effect somewhat by appearing genuinely shocked a moment later when Benson noted the role that Justice Breyer played in that particular case.

"Did [Breyer] actually uphold Kelo?" Johnson asked Benson.

"Yeah, he did," Benson replied. "He was in the majority in that case."

"Oh my gosh," Johnson declared.

I think it's safe to assume that Johnson-Weld won't be dropping Stephen Breyer's name anymore.

Related: Is SCOTUS a Good Reason to Support Trump? Libertarian and Conservative Legal Experts Weigh In

Federal Judge Denounces Judicial Deference to Federal Regulatory Agencies

Thu, 25 Aug 2016 11:54:00 -0400

(image) In a landmark 1984 decision known as Chevron U.S.A., Inc. v. Natural Resources Defense Council, the U.S. Supreme Court held that when the federal courts are confronted with an "ambiguous" statute, the default position is for federal judges to defer to the statutory interpretation favored by the federal agency charged with enforcing that statute. "Federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do," declared the majority opinion of Justice John Paul Stevens. "While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices." In other words, Chevron instructs the courts to tip the scales of justice in favor of federal agencies in cases dealing with questionably worded federal statutes. Lawyers call this approach "Chevron deference."

To say the least, the existence of Chevron deference raises some significant legal questions. For example, don't federal judges have an independent duty "to say what the law is," as Chief Justice John Marshall famously put it in Marbury v. Madison? What's more, doesn't the separation of powers doctrine stand in the way of unelected federal bureaucrats defining the scope of their own authority?

In a concurring opinion filed this week in the case of Gutierrez-Brizuela v. Lynch, Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit asked and answered those very questions. His judgment? Chevron deference needs to go.

Chevron is a "judge-made doctrine for the abdication of the judicial duty," Judge Gorsuch declared. "Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive)." In his view, "under any conception of our separation of powers, I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more."


Randy Barnett on Trump, the Supreme Court, and the Future of the Republican Party

Mon, 15 Aug 2016 13:00:00 -0400

"If Trump takes over the Republican Party it's likely to become a right-wing nationalist party of the kind you see in Europe," says Randy Barnett, who's a law professor at Georgetown and the author most recently of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People.

Barnett wrote a column for USA Today last March calling for disaffected Republicans to consider a third-party candidate in the event that Donald Trump becomes the party nominee. Reason TV's Nick Gillespie sat down with Barnett to discuss the GOP's future, what the 2016 election portends, and why Supreme Court Justice Ruth Bader Ginsburg was right to apologize for her critical remarks about Trump.

"Judges have to at least act like they are above that sort of thing," Barnett explains. "It's certainly foreseeable that a case involving the Trump campaign could come before the Court in the next few months [and]...she couldn't possibly sit on that case now."

Approximately 8 minutes.

Interview by Nick Gillespie. Edited by Austin Bragg. Shot by Meredith Bragg, Jim Epstein, and Justin Monticello.

Scroll down for downloadable versions and subscribe to ReasonTV's YouTube Channel to receive notification when new material goes live.

Stephen Breyer, Advocate of Pro-Police Judicial Deference, Turns 78 Today

Mon, 15 Aug 2016 12:31:00 -0400

(image) When President Bill Clinton nominated Stephen Breyer to the U.S. Supreme Court in 1994, he said Breyer would be a justice who would "strike the right balance between the need for discipline and order, being firm on law enforcement issues but really sticking in there for the Bill of Rights." Today is Stephen Breyer's 78th birthday. Let's take the opportunity to briefly consider how Breyer's record measures up to Clinton's lofty words.

The first thing to know about Justice Breyer is that he frequently preaches the virtues of judicial deference. For example, in his 2010 book, Making Our Democracy Work: A Judge's View, Breyer insisted that the courts should defer to the other branches of government whenever possible. Judges must "take account of the role of other governmental institutions and the relationships among them," Breyer wrote, in order to "maintain a workable relationship between the various branches of government."

Perhaps unsurprisingly, that quest for a "workable relationship" has led Breyer to vote routinely in favor of granting broad leeway to law enforcement officers and agencies.

Consider the 2014 case of Navarette v. California. At issue was an anonymous phone call made to 911 about an allegedly dangerous driver. That anonymous and uncorroborated tip prompted the police to make a traffic stop that led to a drug bust. According to the Court's majority opinion, "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." Among that 5-4 pro-police majority was Justice Breyer.

Now consider the dissenting opinion filed in that same case by Justice Antonin Scalia. "The Court's opinion serves up a freedom-destroying cocktail," Scalia wrote, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That troubling scenario, Scalia observed, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures."

The 2012 matter of Maryland v. King offers another case in point. Once again Justice Breyer voted in favor of aggressive law enforcement tactics, this time joining the majority in allowing the police to conduct warrantless DNA swab tests incident to arrest. "Make no mistake about it," Justice Scalia shot back in dissent (again joined by Ginsburg, Sotomayor, and Kagan), "as an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."

So it turns out that Bill Clinton was half right back in 1994. Justice Breyer has indeed proved to be "firm on law enforcement issues." Contrary to Clinton's assurances, however, Breyer has not exactly been "sticking in there" for the Fourth Amendment.

George Will on the Limits of Majority Rule

Fri, 12 Aug 2016 15:35:00 -0400

Reason's Matt Welch and Nick Gillespie sat down with Pulitzer Prize-winning columnist George Will back in March for a free-wheeling discussion about the current state of American politics. According to Will, "the most interesting argument in American governance today" is not the conflict between Democrats and Republicans; instead it is the argument between those conservatives "who believe that we need, as conservatives have been saying for years, a deferential judiciary, passive and deferential to the majoritarian branches of government," and those libertarians "who argue on the contrary that what we need is an engaged judiciary asserting the fact that the essence of America is not majority rule, it is liberty." Will made it clear that he came down squarely on the side of the libertarians.

In a new National Affairs essay titled "The Limits of Majority Rule," Will explains and defends his position in detail. It's a fascinating piece, well worth reading in full, particularly for Will's account of how he came to reject his own prior support for judicial deference. Here's a brief excerpt:

For many years and for several reasons, many of my fellow conservatives have unreflectively and imprudently celebrated "judicial restraint." For many years, I, too, was guilty of this. The reasons for that celebration of restraint include an understandable disapproval of some of the more freewheeling constitutional improvisations of the Warren Court, and the reasonable belief that the law schools that train future judges, and the law reviews that influence current judges, are, on balance, not balanced — that they give short shrift to conservatism. It is, however, high time for conservatives to rethink what they should believe about the role of courts in the American regime....

The principle of judicial restraint, distilled to its essence, frequently is the principle that an act of the government should be presumed constitutional and that the party disputing the act's constitutionality bears the heavy burden of demonstrating the act's unconstitutionality beyond a reasonable doubt. The contrary principle of judicial engagement is that the judiciary's principal duty is the defense of liberty, and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the Constitution's architecture, the purpose of which is to protect liberty. The federal government can dispatch this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power. A state or local government can dispatch the burden by demonstrating that its act is within the constitutionally proscribed limits of its police power.

Read the whole thing here. Watch Will, Welch, and Gillespie below.

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Gary Johnson and the Promise of Libertarian Constitutionalism

Wed, 10 Aug 2016 09:15:00 -0400

(image) Libertarian candidate Gary Johnson recently told that if he's elected president his nominees to the U.S. Supreme Court will be "people that look at the Constitution of original intent." Over at the liberal legal blog Balkinization, University of Michigan law professor Richard Primus took issue with Johnson's statement. Johnson's problem, Primus insisted, is his "mistaken understanding that the Founders shared his libertarian values." In Primus' view, libertarians really have no business being constitutional originalists because it is "a serious distortion of history to think of the Founders' Constitution as distinctly libertarian."

To be sure, the Constitution is not tantamount to the Libertarian Party Platform. But then of course no serious libertarian legal thinker would ever claim otherwise. The salient point here is that the Constitution—interpreted according to its original meaning—does contain some very powerful libertarian elements.

Here's an example. When the Supreme Court struck down the National Industrial Recovery Act in 1935, it did so on the grounds that this sweeping piece of New Deal legislation exceeded Congress' enumerated powers under the Commerce Clause. In response to that ruling, President Franklin Roosevelt attacked the Supreme Court for sticking to the original meaning of that moldy constitutional provision. "The country was in the horse-and-buggy age when that clause was written," the president fumed. In other words, even FDR acknowledged that constitutional originalism led to certain libertarian results. Those results are the reason why FDR rejected original meaning in favor of living constitutionalism.

The original meaning of the 14th Amendment offers another case in point. As I argued in my recent book, Overruled, "the text of the Fourteenth Amendment, the historical context that shaped it, and the statements of purpose made by those who drafted it, voted for it, and ratified it, all point in the same direction: It was designed to make state and local governments respect a broad range of fundamental rights, including both those spelled out in the Bill of Rights and those economic liberties essential to safeguarding the principles of free labor."

So yes, the Constitution does contain a number of significant libertarian elements. The trick, as always, is getting the government to abide by those elements in the first place.

Alabama’s Chief Justice Faces Possible Ejection over Gay Marriage Resistance

Tue, 09 Aug 2016 11:45:00 -0400

(image) Infamously anti-gay Christian conservative Alabama Chief Justice Roy Moore is back in the news and may possibly get stripped of his job yet again.

The state has ordered Moore to face trial in September over accusations of ethical violations. In 2015, as federal courts started striking down state-level bans on same-sex marriage recognition, but before the Supreme Court ruled, Moore pushed the governor and the state to ignore any federal court rulings that did not comport with Moore's position against same-sex marriage and said he wanted to "stop judicial tyranny and any opinions issued without constitutional authority."

Moore's attitude toward marriage recognition did not change after the Supreme Court's Obergefell ruling obligating all states to treat gay marriages the same way they treat straight marriages. In January this year, months after the ruling, Moore put out an administrative order insisting that a previous order that Alabama probate judges not administer same-sex marriage licenses was still in effect. He concluded:

Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

This is being perceived as open defiance of the Supreme Court ruling and the Southern Poverty Law Center (SPLC) brought up the complaint against Moore. Both sides attempted to prevent a trial. Moore wanted the case dismissed, aruging that he was offering "guidance" to confused probate judges, not orders. SPLC wanted Moore simply removed from office. Instead there will be a trial.

Moore has been suspended since May. If he's stripped from office, it won't be the first time. Moore was removed from office in 2003 by the Alabama Court of the Judiciary for refusing to comply with federal orders to remove a monument to the Ten Commandments from the Alabama Judicial Building. He subsequently ran for governor and lost, then was voted back into office as the Alabama chief justice in 2012.

Read more about the fight and protests for and against Moore here and the actual order that prompted the attempt to remove him from office here.

William Weld's Troubling Praise for Supreme Court 'Idol' Hugo Black

Thu, 04 Aug 2016 11:12:00 -0400

Libertarian presidential candidate Gary Johnson and his running mate William Weld fielded a series of questions last night on CNN's Libertarian Town Hall. One question in particular caught my attention. "Could you elaborate on the type of judicial philosophy you would like to see in the next [SCOTUS] justice?" an audience member asked Johnson-Weld. "Well, there wouldn't be a litmus test," Johnson replied. Johnson said instead that he would look for nominees who approach "the Constitution from the standpoint of original intent." Johnson then invited his running mate to provide a more elaborate answer. "I would look for the best legal minds I could find and the whole person," Weld said. "Two of my idols on the court were Hugo Black and Bill Douglas." It's curious to find a Libertarian presidential ticket name-checking Justice Hugo Black as a SCOTUS "idol." Black was a New Deal Senator from Alabama (and a one-time member of the Klu Klux Klan) appointed to the Supreme Court in 1938 by President Franklin Roosevelt. The best thing that can be said about Black from a libertarian perspective is that he was a First Amendment absolutist, a jurist who argued that "courts must never allow this protection to be diluted or weakened in any way." Yet Black is no friend to libertarians when it comes to the crucial issue of judicial protection for unenumerated constitutional rights. As far as Black was concerned, the Constitution guarantees only those rights that it explicitly spells out. It was this view that led Black to file his famous dissent in the 1965 case of Griswold v. Connecticut. In that case the Supreme Court struck down a state law that made it illegal for married couples to obtain or use birth control devices on the grounds that the restriction violated their unenumerated constitutional right to privacy. "I like my privacy as well as the next one," Black huffed in dissent. "But I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." According to Black, the Supreme Court had no business protecting what he dismissed as "personal rights." Along similar lines, Black also thought the Court had no business protecting "economic rights." Black's Griswold dissent even unfavorably likened Griswold to the Court's 1905 decision in Lochner v. New York, in which a state regulation was struck down for violating the unenumerated right to liberty of contract. Perhaps it should go without saying, but today's libertarian legal scholars take the opposite view from Justice Black when it comes to the judicial safeguarding of unenumerated rights. Generally speaking, the libertarian legal movement believes that the Supreme Court reached the right results in both Lochner and Griswold. Ironically, Weld's idolization of Justice Black even undercuts Weld's outspoken support for abortion rights. How? The unenumerated right to privacy that was recognized in Griswold (over Black's dissent) served as a key precedent for the unenumerated right to abortion that was recognized in 1973's Roe v. Wade. So not only does Weld's invocation of Hugo Black raise a potential red flag for libertarian-minded voters, it also raises a potential red flag for pro-choice liberals who might be open to giving the Libertarian ticket a serious look. (For a more detailed account of Justice Hugo Black's jurisprudence, including the influence of Progressive era legal thinking on Black's hostility to unenumerated rights, please check out the third chapter of my recent book Overruled.)[...]

Supreme Court Temporarily Blocks Transgender Bathroom Ruling

Wed, 03 Aug 2016 19:35:00 -0400

Gavin Grimm may not use the men's restrooms at his Virginia high school for the time being. The Supreme Court has stepped in temporarily and blocked the implementation of a lower court decision that affirmed the right of the transgender teen to use the school bathrooms that match the way he is presenting his gender identity. The divided decision—five to three—will keep the school board's current order that Grimm may not use bathrooms that contradicts his birth sex, but may use several of the school's unisex bathrooms. Grimm has filed suit claiming that this ban is a sex discrimination violation under Title IX. The Supreme Court's injunction is only for the purpose of maintaining the status quo while it decides whether it will take up legal challenge and should not necessarily be taken as an indication that the justices are inclined to find in favor of the school district, though the three votes opposing the stay of the ruling were the court's three more liberal justices. If the court declines the case, the block will be lifted, meaning Grimm will triumph over the school. Here's where things stand legally: The current Department of Justice and the Obama administration in general has argued that discrimination and harrassment targeting transgender people falls under sex discrimination laws. There are a handful of federal court rulings that affirm this position, so it's not something they've invented out of whole cloth. The argument—based on a previous Supreme Court precedent—is that such behavior is a type of discrimination that is based on whether a person demonstrates stereotypical appearances and attitudes associated with a particular gender. The court had previously ruled that such discrimination or harassment as inadmissible and punishable under federal law. But in the precedent referenced, this was a case of a female employee believing she was being punished for not behaving in a stereotypically female fashion. The Supreme Court has not yet weighed in on whether this precedent should also apply to transgender people. (Read more about this all here.) In addition, for Title IX cases involving schools, the lower court has ruled that when Title IX's provisions on sex-separated facilities are ambiguous (and Title IX does not address transgender students), school districts should defer to Department of Education recommendations. And that's where the Obama administration's position (and the objections to it from conservative states) enter in. (Update: Jonathan Adler at the Volokh Conspiracy explains why he thinks the lower court's ruling is a legal error here.) It's still not clear that the Supreme Court will take a case; currently all federal rulings are running in the same direction, so it's not as though there is a federal court conflict that must be resolved. The fact that they've agreed to a temporary block on the ruling should be taken as a sign that they're at least interested. And we can fully expect this temporary decision to be used by both the major parties to rally voters to their sides over the future of the Supreme Court's make-up.[...]