Supreme Injustice

by Jacob H. Huebert
Liberty, October 2008

The U.S. Supreme Court has done a lot of damage to liberty, interpreting government powers broadly and many constitutionally protected rights narrowly.

Cato Institute senior fellow Robert A. Levy and Institute for Justice co-founder William Mellor have catalogued some of the Court’s worst offenses in their new book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

For the most part, the cases they’ve selected for derision are appropriate, and their discussions leave no doubts about their genuine concern for personal and economic liberty.

Which cases have they chosen? Here’s the list:

  • Helvering v. Davis (1937) — allowed spending for virtually any purpose under the Constitution’s “General Welfare Clause.”
  • Wickard v. Fillburn (1942) — gave rise to Congress’ almost unlimited power under the Commerce Clause.
  • Home Building & Loan Association v. Blaisdell (1934) — weakened the Contract Clause, which forbids government interference with already-existing private contracts
  • Whitman v. American Trucking Associations, Inc. (2001) — reflected the extreme deference the Supreme Court gives to administrative agency regulations.
  • McConnell v. Federal Election Commission (2003) — upheld the McCain-Feingold restrictions on political speech against a First Amendment challenge.
  • United States v. Miller (1939) — threw doubt upon gun owners’ rights under the 2nd Amendment. (The recent District of Columbia v. Heller decision casts new light on this issue, of course.)
  • Korematsu v. United States (1944) — approved FDR’s Japanese internment camps.
  • Bennis v. Michigan (1996) — approved civil asset forfeiture against the wife of a man who used his car to pick up a prostitute.
  • Kelo v. City of New London (2005) — approved use of eminent domain for economic development to increase tax revenues.
  • Penn Central Transportation Co. v. New York (1978) — held that a property owner wasn’t entitled to compensation under the Takings Clause despite losing the right to use the airspace above its current building height.
  • United States v. Carolene Products (1938) — in a footnote, essentially gave state and local governments carte blanche to restrict economic liberties.
  • Grutter v. Bollinger (2003) — upheld the University of Michigan’s law school’s affirmative action program against an “equal protection” challenge.

In each of these cases, liberty lost and the government won in some precedent-setting way. (Except, arguably, in the affirmative-action case, as Richard Epstein points out in his foreword.)

But is that the only criterion we should use in determining whether a Supreme Court case is good or bad? Levy and Mellor apparently think so — they say that the “‘worst’ cases should be defined in terms of their outcomes, not merely bad legal reasoning.”

Because they’re concerned more with a given case’s outcome than with its reasoning, the authors unquestioningly embrace the idea that the 14th Amendment allows federal courts to strike down laws that don’t comport with liberty.

But those who value federalism may be troubled by this. Such a broad reading of the 14th Amendment centralizes power in the federal courts. No libertarian denies that it’s bad for state governments, local governments, or anyone else to violate rights — but it doesn’t necessarily follow that an appropriate solution to this problem is to give federal judges more power. After all, what happens after we’ve put the fate of our liberties in the judges’ hands and they decide that the 14th Amendment contains various positive “rights” that they like even more than libertarian rights?

A benevolent dictatorship could be an extremely effective means of implementing the libertarian program, too, but presumably none of us would want that because there’s no telling what the next dictator will do. Although judges don’t directly command armies or police, we should be similarly wary of empowering them.1

Still, one might reasonably argue that the federalism battle was lost long ago, rightly or wrongly — and because the federal courts will go on making decisions for all of us whether we like it or not, we might as well be in those courts protecting people from the government. If states’ rights are a lost cause, it makes sense to sell federal judges on liberty, using whatever arguments the judges will buy. With this much, I could agree.

But Levy and Mellor are more ambitious than that in calling for “judicial engagement” on liberty’s behalf. They seem to think that restoring liberty is really only a matter of overturning a handful of bad court precedents. If we can just get in front of judges and do that — apparently through the irresistible power of our arguments and our lawyers’ outstanding legal skills — we can finally achieve liberty across the land.

Such a plan is not only arrogant, it’s also doomed to failure. Federal courts, after all, are the government. Judges must be appointed by the president and confirmed by the Senate. What president would choose a judge who would severely limit that president’s own power? What senators would confirm a judge who won’t just let them do whatever they want? To be confirmed, a would-be libertarian Supreme Court justice would either have to spend an entire academic or judicial career hiding his true views, or he would have to have a late-in-life road-to-Damascus conversion once he’s already on the bench and employed by the very federal government he’s expected to restrain. Unlikely.

You’d think beltway-libertarian lawyers would understand by now that they’re playing in a rigged game. After all, they took Kelo v. City of New London (the eminent domain case) and Raich v. Gonzalez (the medical marijuana case) to the Supreme Court, and failed, creating terrible anti-liberty precedents that are unlikely to be reversed in our lifetimes.

As an example of success, they might point to the public outcry and state-level reforms Kelo prompted. At best, though, this demonstrates that the states are a better place to be fighting these battles in the first place. And, unfortunately, many states’ responses have been mostly superficial — typical efforts by politicians to appear to be doing something — and are unlikely to meaningfully protect property rights.2

They’ll also point to the recent District of Columbia v. Heller, in which the Supreme Court struck down the D.C. handgun ban. And, yes, it’s pleasant to see protection of individual rights increase, even a little bit, even if the main beneficiaries are D.C. dwellers.

But Heller is likely to be a very limited victory. The decision acknowledged that lesser restrictions on the right to bear arms — registration requirements, bans on carrying guns, bans on certain types of guns — probably will pass muster. In fact, lower courts are already citing Heller to uphold other gun laws.

If you’re not convinced that Heller is a mostly hollow victory, take a look at almost every case that’s followed the supposedly revolutionary United States v. Lopez. That 1995 decision struck down the federal Gun-Free School Zones Act of 1990 because, the Court found, gun possession at a school does not affect interstate commerce enough to bring it under Congress’ Commerce Clause power. Conservatives and libertarians understandably hailed the decision because it was the first time since the Great Depression that the Supreme Court recognized any limit on Congress’ Commerce Clause power. Since Lopez, though, courts have gone right back to rubber-stamping their approval on just about anything Congress wants to do, as long as Congress makes some “finding” (that is, baseless assertion) that the activity they’re controlling affects commerce.

It’s nothing short of bizarre to think that courts would start protecting liberty because of brilliant libertarian legal arguments. To believe this, one would have to take the naive view — which, incidentally, animates much of the Cato Institute’s work — that government officials are really reasonable, serious people who are just waiting to have the right ideas put in front of them. But how silly is it to think you can make the government want liberty before many or most of the people want it?

Granted, all the federal judges I’ve known have been genuinely nice people on a personal level — so perhaps our D.C.-based lawyers’ views have been skewed by exchanging pleasantries at a few too many beltway cocktail parties.

They may be hopelessly deluded, but the rest of us should keep in mind that the important work to be done is in the realm of education, not the halls of government. When people understand and want liberty’s benefits, they’ll cast off their government entirely, or at least elect representatives who will respect their rights. When that happens, no bad Supreme Court precedent will stand in their way.

Until then, The Dirty Dozen offers a mostly decent education on the harm the Supreme Court can do — but shouldn’t lead us into thinking the Court could somehow become an equivalent force for good.


1. Gene Healy made a strong argument against such “libertarian centralism” in various articles, including “Liberty, States’ Rights, and the Most Dangerous Amendment” (Liberty, Aug. 1999) and “Roger & Me” (Liberty, Feb. 2000).

2. The Castle Coalition provides a state-by-state breakdown.