Libertarians vs. Conservatives
It was the morning of July 25, 2005, and the Washington Post had just detonated a small bombshell. “Supreme Court nominee John G. Roberts Jr. has repeatedly said he has no memory of belonging to the Federalist Society,” announced reporter Charles Lane, “but his name appears in the influential, conservative legal organization’s 1997–1998 leadership directory.”1 Five days earlier, President George W. Bush had nominated Roberts to replace retiring Justice Sandra Day O’Connor, who was stepping down to help care for her husband, John, who was suffering from Alzheimer’s disease. Now, thanks to the Post, Roberts was about to face his first hurdle on the path to eventual confirmation by the U.S. Senate.
Founded in 1982 by a handful of law students at Yale University and the University of Chicago, the Federalist Society for Law and Public Policy Studies had quickly grown to become the most influential conservative legal organization in American history.2 Among the ranks of its current or former members are federal judges, leading law professors, and high-ranking government officials, including close advisers to some of the most powerful figures in the Republican Party. Founder Steven Calabresi, for instance, who started the original Yale student chapter, later went on to serve as a senior Justice Department official in the Ronald Reagan administration and as a speechwriter for Vice President Dan Quayle. Lee Liberman Otis, who co-founded the original Chicago student chapter, later served as associate counsel to President George H. W. Bush and as an associate deputy attorney general in the Justice Department of George W. Bush. But perhaps the most prominent and influential alumnus of them all is Supreme Court Justice Antonin Scalia, a former faculty adviser at the University of Chicago and still a frequent speaker at Federalist Society events.
That reputation as a bastion of hardcore conservatives was why the Washington Post found Roberts’s possible membership to be a newsworthy item. Unlike previous Supreme Court nominees such as Robert Bork, who had written widely during his years as a law professor on a range of controversial topics, and had therefore provided plenty of rich material for journalists and critics to mine during his 1987 confirmation fight, Roberts’s paper trail was relatively thin by comparison. Indeed, the heaviest baggage Roberts was carrying around3 consisted of a number of memos written for his old bosses in the Reagan Justice Department spelling out various conservative legal positions. But possible membership in the Federalist Society? That sparked the curiosity of the Washington press corps, who hoped it might help turn up a few clues to Roberts’s personal views about the law. Roberts’s liberal detractors, meanwhile, hoped his association with the high-profile conservative outfit just might produce the smoking gun needed to thwart his nomination.
“Just because someone belongs to the Federalist Society does not inherently disqualify them,” declared Ralph Neas, president of the liberal advocacy group People for the American Way. “But it certainly raises a lot of questions about whether that individual adheres to the judicial philosophy of Clarence Thomas and Antonin Scalia.”4 As Neas and his allies on the left saw it, Thomas and Scalia had been disasters on the bench. Adding another right-wing justice in their vein would compound the catastrophe and should therefore be opposed by any political means necessary. Federalist Society members, meanwhile, fought back against what they saw as a ridiculous witch hunt. “There’s no need to distance Roberts from the Federalist Society, for there’s nothing disreputable about membership in it,” announced one society member in an editorial written for the New York Post. “What are we talking about here: the Communist Party? the Ku Klux Klan? No, we’re talking about an organization of conservative and libertarian lawyers and legal scholars, begun nearly a quarter of a century ago in response to the overwhelmingly leftist tilt of the nation’s law schools, to try to bring some balance and a different perspective to that insular and highly politicized world.”5
In the end, Roberts survived the scandal. He said he had no memory of ever officially joining the Federalist Society, the White House said it believed him, and the press moved on to fresher controversies once his confirmation hearings got going in the Senate a few months later. What makes the episode worth remembering today is not what it said about Roberts, which was basically nothing, but what it revealed about the fearsome notoriety of both the Federalist Society and the larger conservative legal movement the society had come to represent. Thirty years earlier, in the wake of landmark liberal rulings such as Roe v. Wade, the idea of an impending conservative takeover of the Supreme Court would have been waved away with a few polite chuckles. But by 2005, thanks in large part to the intellectual spadework performed by Federalist Society members and fellow travelers, nobody was laughing at the idea of a conservative legal renaissance anymore.
The conservative legal movement occupies one of the biggest tents in modern American politics, with a membership ranging from religious traditionalists to gay-friendly libertarians who really should not be called conservatives at all. Take a glance at a recent federal court docket and you’ll see the movement’s fingerprints on all sorts of cases, from legal attacks on the regulatory power of the Environmental Protection Agency to efforts to abolish affirmative action to the 2012 lawsuit that nearly toppled Barack Obama’s health care law. The movement’s origins lie in the political backlash against the Supreme Court’s perceived liberal activism during the 1960s and ’70s, when it issued landmark decisions on issues ranging from birth control and criminal justice to school busing, voting, and welfare. In the eyes of many conservatives, the Court was not just fulfilling the liberal wish list at that time; it was engaged in the reckless act of inventing new rights previously unheard of in constitutional law, such as the right to an abortion first recognized in Roe v. Wade. In the hopes of undoing some of that perceived damage, many of those same conservatives began plotting a legal agenda of their own.
Several organizations soon formed to carry out that mission, including the Pacific Legal Foundation (founded in 1973), the Landmark Legal Foundation (founded in 1977), and the Washington Legal Foundation (also founded in 1977). They filed amicus (friend-of-the-court) briefs, challenged various government regulations, and pursued conservative and/or libertarian policy goals—both in and out of court.
A significant early development came with the formation of the Federalist Society in 1982. It was a modest start, to be sure. The society’s first public event was a small conference for law students and professors devoted to the subject of federalism, featuring several prominent right-of-center legal scholars, including Yale’s Robert Bork, who had been involved with the society’s Yale chapter from its inception. “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society,” declared that conference’s statement of purpose, drafted by society founders Steven Calabresi, Lee Liberman (now Lee Liberman Otis), and David McIntosh. “While some members of the legal community have dissented from these views, no comprehensive conservative critique or agenda has been formulated in this field. This conference will furnish an occasion for such a response to be articulated.”6
More than three decades later, the Federalist Society still follows that basic blueprint for conservative advocacy. “We’re not a position-taking organization,” explained society president Eugene Meyer in a 2010 interview. He should know. He has occupied that leadership role since 1983. “We don’t lay down the law from the central office.”7 In fact, the Federalist Society takes no official stand on any public-policy issues, including Supreme Court nominations, which it refuses to officially endorse. Instead, the organization seeks to foster an intellectual environment where conservative legal ideas may develop and thrive, essentially creating a far-flung hub where right-of-center law students, lawyers, academics, and activists can gather to share their views and experiences. In large part, the society simply operates as a classic network, connecting the like-minded through student and lawyer chapters that are now present on the campus of every accredited law school in the United States and in more than sixty cities, respectively.
But at the same time, the Federalist Society is no mere social club. From the outset, the society has placed a high premium on intellectual exchange and the nurturing of conservative legal talent, with its various chapters sponsoring numerous debates, panel discussions, and conferences each year, while the national office hosts a massive annual gathering each fall in Washington, D.C., that is itself replete with panels and debates and typically features a conservative federal judge or Supreme Court justice delivering a keynote speech. And while the focus at these events is always on legal topics that matter first and foremost to conservatives, the Federalist Society consistently attracts top-notch participants from across the political spectrum, including many of the academy’s most distinguished liberal scholars. And because society membership is as wide ranging as the conservative movement in general, even the most conservative Federalist Society member has been exposed to libertarian legal ideas at one point or another.
Another key milestone in the legal right’s modern resurgence came when President Ronald Reagan appointed conservative lawyer and former law professor Edwin Meese III as attorney general in 1985. An aggressive critic of the liberal legal establishment, Meese made judicial restraint, which had been a conservative rallying cry since the advent of the liberal Warren Court, into a central component of Reagan’s domestic agenda. “What, then, should a constitutional jurisprudence actually be?” Meese asked in a 1985 speech to the American Bar Association. It should be one rooted in the original intentions of the founders, he said, and it should be one where judges exhibit “a deeply rooted commitment to the idea of democracy.”8 Writing in the New York Law School Law Review a decade later, Meese said this approach was meant to undo “more than a quarter century of judicial activism, in which the text of the Constitution, precedent, and certainty were cast aside in favor of wild flings of judicial fancy.”9
But perhaps the most important factor of all was the intellectual path blazed by Robert Bork. He was there at the outset, mounting the new right’s first authoritative counterattack against the Supreme Court’s burgeoning jurisprudence in the realms of privacy and abortion, crafting legal arguments that still remain in use today by conservative lawyers and judges. A decade later, Bork, by then an established and respected legal scholar, took an active role in both the fledgling Federalist Society, where his numerous speeches and debates would influence multiple generations of young lawyers (not to mention future judges and politicians), and in the first wave of what conservatives would dub the “Reagan Revolution,” formally joining the ranks in 1982 when the president appointed him to the U.S. Court of Appeals for the District of Columbia Circuit, where Bork was finally able to put his own stamp on the law. His failed 1987 nomination to the Supreme Court, meanwhile, galvanized the American right and transformed Bork into something of a martyr figure among conservative legal activists. In short, it’s no overstatement to describe him as the conservative legal movement’s most significant figure.
Bork’s next contribution to the cause came in 1990, when he gave the movement its first great manifesto. Part legal history, part constitutional treatise, and part personal memoir, The Tempting of America was a bestseller upon publication and has never gone out of print. It’s a fascinating book, weaving Bork’s unsuccessful Supreme Court nomination into his larger theme of what he calls the politicization of the law, or the growing desire by many Americans to use the courts to achieve results that should be properly reached via the legislative process. “A judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result,” Bork wrote. “Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy.”10
At the heart of the problem, as Bork saw it, was the misguided effort to place individual liberty on a consistently higher plane than majority rule. In Bork’s view, that approach was totally at odds with the basic American design. The “first principle” of our system is not individualism, Bork argued, it is majoritarianism, a bedrock point that no judge should ever lose sight of. “In wide areas of life,” Bork maintained, “majorities are entitled to rule, if they wish, simply because they are majorities.”11
That approach became widely accepted on the right, as evinced by the conservative response to issues ranging from the regulation of abortion to the scope of the president’s executive authority. In such cases, the default conservative position is for the judiciary to defer to the choices made by the elected branches of government.
But at the same time that Bork was setting the intellectual pace on the right, a new breed of libertarian legal thinkers was beginning to craft an ambitious agenda of their own, one that would soon put them on a collision course with the majoritarian jurisprudence championed by Bork. Why the impending conflict? The answer is simple. As the libertarians saw it, Bork was the one making the fundamental error. Individual liberty comes first, the libertarians declared, not majority rule.
“A Stance of Across-the-Board Libertarianism”
One of the first libertarian challenges to the Borkean view came from University of San Diego law professor Bernard Siegan, whose powerful case for libertarian judicial action reverberated throughout the conservative legal world. Siegan became so influential, in fact, that President Reagan even tried to make him a judge on the U.S. Court of Appeals for the Ninth Circuit, although the Senate ultimately rejected Siegan’s 1987 nomination—which came on the heels of the Bork debacle—on a party-line vote.
Born in Chicago in 1924, Siegan served in World War II and then went on to complete a law degree at the University of Chicago in 1949. He spent the next two decades practicing real estate law in the greater Chicago area, where he found himself face-to-face with what he saw as a fundamentally unworkable regulatory and bureaucratic regime. He made the leap to the academic world with the 1972 publication of Land Use without Zoning, a book-length argument in favor of deregulation and laissez-faire, using the example of Houston, Texas—a major American city that had developed and thrived despite having no zoning laws on the books—to support his case. Based on the strength of his scholarship, Siegan joined the faculty of the University of San Diego School of Law in 1973, where he would remain for the next thirty years.
At San Diego, Siegan completed work on the volume that would make his name in libertarian and conservative circles. Published in 1980 by the University of Chicago Press, Economic Liberties and the Constitution presented a sweeping legal and historical argument: The Supreme Court was wrong to abandon liberty of contract and in fact subverted the Constitution in the fateful year of 1937. “Justices are not intended to be government agents, furthering the interests of the executive or legislative branches in their disputes with citizens,” he observed. “A judicial system more concerned to protect the power of the government than the freedom of the individual has lost its mission under the Constitution.”12 Yet thanks to the bifurcated system put in place by Footnote Four of the Carolene Products decision, Siegan maintained, the courts now performed exactly that sort of pro-government role when it came to those cases dealing with allegedly “non-fundamental” rights, such as the economic freedom to work in a common occupation. According to Footnote Four, judicial deference should be the rule in all cases dealing with economic regulation. By contrast, if the dispute was over voting rights, the treatment of racial minorities, or the Bill of Rights, Footnote Four openly invited the courts to practice aggressive judging and put the government’s actions under the microscope.
In Siegan’s view, it was ludicrous for the Supreme Court to enforce this fictitious distinction. At the same moment the Court was busy recognizing and protecting new rights under the Fourteenth Amendment, he complained, “economic liberties, which significantly touch almost every person’s life, have not been accorded appreciable protection.”13 His solution was for the courts to treat all rights equally and for judges to meaningfully scrutinize the government’s actions in every case that came before the bench, not just in those areas where the right at issue had been arbitrarily labeled as fundamental. To accomplish this end, Siegan proposed a three-part test for judges to administer when seeking to determine the constitutionality of economic and social legislation. First, the government must shoulder the burden of proof and demonstrate “that the legislation serves important governmental objectives”; second, there must be a close fit between the regulatory means selected and the governmental ends those means are supposed to accomplish; and third, the government must show “that a similar result cannot be achieved by a less drastic means.”14 In other words, his approach “would require the same judicial priority for economic as for other rights.”15
It was a brazen challenge to the reigning liberal orthodoxy. But it also flew in the face of the judicial restraint championed by conservatives such as Bork. Remember that Bork agreed with the Progressives and saw the Supreme Court’s 1905 ruling in favor of economic liberty in Lochner v. New York, in which the Court struck down a state law preventing bakery employees from working more than sixty hours per week, as a regrettable example of conservative judicial activism. Siegan took the opposite view, praising the Lochner majority for refusing to defer to New York’s “speculative conclusions and paternalism.”16 Whereas Bork took his inspiration from the deferential philosophy of Justice Oliver Wendell Holmes, Siegan followed the path of Justice Stephen Field.
The conflict between Siegan’s libertarianism and Bork’s majoritarianism was perhaps nowhere more apparent than in Siegan’s treatment of the Supreme Court’s controversial 1965 decision in Griswold v. Connecticut, which recognized the privacy rights of married couples to obtain and use birth control devices. Griswold was of course the very case that launched Bork on his career as the right’s chief advocate of judicial deference and as its leading critic of activist liberal judging. For Siegan, on the other hand, Griswold was a defensible ruling that matched up nicely with his larger argument for how the courts should scrutinize the government’s actions in each and every case. In fact, Siegan’s only real complaint about Griswold was that Justice William O. Douglas had followed the “uncharted and circuitous” path of “emanations” and “penumbras” in his majority opinion rather than just using classic Fourteenth Amendment libertarianism to strike down the offending state law. “Applying pre-1937 substantive due process,” Siegan explained, the Court might have simply said, “By selling a professional service to married couples, the defendants were exercising liberty of contract. Connecticut’s ban was an arbitrary and unjustifiable infringement of this liberty.”17
That argument proved appealing to libertarians, but Bork rejected it out of hand. Although he did praise Siegan for the clarity of his thinking, Bork still thought Siegan’s basic position would grant the judiciary an impermissible license to do mischief. “The logic is impeccable if one accepts Griswold and Roe, and much else in contemporary jurisprudence, as proper discharges of the judicial function,” Bork granted. But if one did not accept the judicial methodology of those cases, as Bork certainly did not, then Siegan’s “case for unmentioned economic liberties is, by a parity of reasoning, defeated.” The problem, Bork argued, was that Siegan would place the Supreme Court “in a stance of across-the-board libertarianism,” when in fact what the Court should be doing is removing itself entirely from these sorts of disputes and letting the democratic process run its course. “There being nothing in the Constitution about maximum hours laws, minimum wage laws, contraception, or abortion,” he concluded, “the Court should have said simply that and left the legislative decision where it was.”18
“Your Classic Case of Majoritarian Tyranny”
From the early 1980s forward, libertarians and conservatives would battle repeatedly over the proper role of the courts, facing off in the halls of the academy, in the pages of learned journals, and in countless debates organized by the Federalist Society and other groups. At first, this debate attracted little notice outside of legal and academic circles. But the clash of visions would not remain hidden in the scholarly shadows for long. Indeed, by the early 2000s, the libertarian-conservative divide would come to play a prominent supporting role in the high-profile struggle over gay rights. Here’s how it happened.
In 1986 the U.S. Supreme Court considered the constitutionality of a Georgia law criminalizing the act of sodomy, defined by the state as “any sexual act involving the sex organs of one person and the mouth or anus of another.”19 The case originated in 1982, when the police arrived at the home of an Atlanta man named Michael Hardwick in order to serve a warrant. After a roommate let the officers into the residence, they found Hardwick in his bedroom engaged in sexual activity with another man. Both men were then arrested for committing sodomy, although the district attorney later declined to prosecute. Arguing that the existence of the sodomy ban violated his constitutional rights, Hardwick brought suit and took the case all the way up to the Supreme Court.
Writing for a five-to-four majority in Bowers v. Hardwick, Justice Byron White upheld the statute. “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” White wrote, “and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.”20 He added that the case also raised significant questions about the proper role of the judiciary in a democratic society. Although it is true, White observed, that the Supreme Court had previously protected the sexual privacy of married couples to use birth control in the home without state interference in 1965’s Griswold v. Connecticut, and then later extended that same right to cover the use of contraceptives by unmarried persons in 1972’s Eisenstadt v. Baird, the Court was unwilling to push the right of sexual privacy any further in order to reach protected status for homosexual conduct.
Because “the Court is most vulnerable and comes nearest to illegitimacy” when granting judicial protection to unenumerated rights “having little or no cognizable roots in the language or design of the Constitution,”21 White concluded, the justices lacked sufficient cause to sign off on the recognition of gay rights in the present case. As for Hardwick’s claim that the state’s ban was rooted in a discriminatory bias against gay people, White responded that legislation “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”22 The fatal combination of majority rule and judicial deference therefore spelled doom for the legal challenge to Georgia’s sodomy ban. Predictably, Robert Bork was among the many conservatives who cheered the outcome of the case. “Hardwick’s suit,” he wrote, “rested upon nothing in the Constitution and so was one more sortie in our cultural war.”23
In the wake of Bowers, gay rights advocates redoubled their efforts, and in 2003 a promising new case landed on the Supreme Court docket. At issue in Lawrence v. Texas was the Lone Star State’s 1973 Homosexual Conduct Law, which singled out same-sex sodomy as a criminal offense. Once again, the case generated enormous interest among activists on both sides of the contentious issue, with more than thirty different organizations filing friend-of-the-court briefs urging the justices to rule for one party or the other. Among those supporting the state of Texas in its fight to maintain criminal sanctions against homosexuality were well-known conservative groups such as the Family Research Council and Concerned Women for America. Siding with petitioners John Geddes Lawrence and Tyron Garner, the two men originally charged with violating the statute, were liberal stalwarts such as the American Civil Liberties Union and the National Organization for Women.
But Lawrence and Garner also received a critical piece of support from an organization whose involvement on their side of the case surprised more than a few observers at the time. That organization was the Cato Institute, a leading Washington think tank whose agenda of limited government and free-market economics is more typically associated with the political right. Founded in 1977, Cato takes its name from Cato’s Letters, a series of political pamphlets published in early eighteenth-century Britain that influenced many of the leaders of the American Revolution. The institute’s principles are unapologetically libertarian, and its mission is to transform public policy by advancing and defending those principles in the public arena. When the Supreme Court finally ruled to invalidate the Texas ban on homosexual conduct, Cato’s friend-of-the-court brief on behalf of Lawrence and Garner would be cited twice by the majority and would play a valuable role in shaping the Court’s reasoning.
Cato’s influence in the realm of legal affairs is due primarily to the vision of a man named Roger Pilon, the director of the institute’s Center for Constitutional Studies, which he founded in 1989 and has been running ever since. Sitting in his Washington office on a crisp November afternoon in 2013, Pilon explained to me why the decision to join the fight against Texas’s Homosexual Conduct Law was “an easy call for us.” In the wake of Bowers v. Hardwick, he said, “this was a case that cried out to be addressed. These are people who are harming no one. It’s your classic case of majoritarian tyranny.”24
By the time Lawrence arrived in 2003, Pilon was already a seasoned veteran in the long libertarian war against conservative majoritarianism. He got his start in political philosophy, earning a PhD from the University of Chicago in 1979 with a dissertation entitled “A Theory of Rights: Toward Limited Government.” Among the members of his dissertation committee was the Nobel Prize–winning libertarian economist Milton Friedman. “Not fully realizing at that time the jurisprudential implications of what I was doing,” Pilon explained, “my aim was to show that the natural rights orientation of the Founders, stemming from Locke, was right, whereas the welfare rights orientation of modern liberals was wrong. Clearly, that set me apart from the anti-rights posture many conservatives were taking in reaction to the liberal judicial activism of the time.”25
Pilon set himself even further apart from those conservatives when his focus shifted to the philosophy of law. “The conservatives reacted to what the Warren and Burger Courts were doing by criticizing the rights revolution. And I thought to myself, this isn’t right either, because this country was founded on the notion of natural rights,” Pilon recalled. “So while the liberals are wrong in moving in the direction of constitutionally protected welfare rights,” he added, “the conservatives were little better in calling on the Court to defer to the political branches that had given us the Leviathan. So I began thinking there’s got to be a path between these two extremes.”26
Pilon began the work of charting that path by taking his case directly to the conservatives in April 1981, addressing the annual national meeting of the Philadelphia Society, which at that time was the country’s foremost gathering of right-leaning intellectuals. Among the members of his audience that night was future Attorney General Ed Meese, who had just arrived in Washington to serve as an adviser to President Ronald Reagan. Meese was there to deliver the event’s keynote address. Pilon’s speech, entitled “On the Foundations of Justice,” began with a reminder to the assembled conservative worthies that by embracing judicial deference, they were essentially surrendering the field when it came to the fight over an entire branch of the government, and thereby undermining the system of checks and balances in the process. “We do not live in a pure democracy but rather in a republic wherein the ‘will’ of the legislature or of the executive is subject to scrutiny by the ‘reason’ of the Court,” he observed. Turning next to the text of the Constitution, Pilon observed that its broad guarantees of individual rights are not just there for show, but are instead designed “to stand athwart the utilitarian calculus, to brake the democratic, majoritarian engine.”27
Pilon later described that speech to me as a “gentle”28 critique of the conservative mainstream, designed to get the libertarian perspective into circulation among the right’s top thinkers. But when it came time to deal with the majoritarian arguments put forward by Robert Bork, Pilon pulled no punches. He first grappled with Bork in the pages of Reason magazine, the flagship libertarian monthly, where he argued that Bork’s calls for a deferential judiciary “would give wide berth to the majority to plan and regulate our lives.” Bork’s misguided emphasis on democracy over liberty “is our inheritance from the Progressive Era, not from the Founding,” Pilon wrote. “At the Founding they got it right. They started with the individual.”29
Pilon pressed the point with even greater force in a 1991 editorial written for the Wall Street Journal titled “Rethinking Judicial Restraint.” Bork’s case for a deferential judiciary, Pilon argued, was not just wrong as a strategic matter, it was wrong on the fundamentals of constitutional law. “The Founders took every step to protect our liberties, even from the majority—indeed, especially from the majority,” Pilon argued. Yet under the Bork approach, he wrote, the judiciary is required to “shirk its duty to secure those rights by deferring to the political branches in the name of ‘self government.’” The correct approach, Pilon countered, was for the courts to “hold the acts of the other branches up to the light of strict constitutional scrutiny. There is no place for ‘restraint’ in this.” The time had arrived, Pilon concluded, for conservatives “to rethink ‘judicial restraint’ and restore the judiciary to its rightful place in a system of separated powers.”30
“Libertarians Threw Down the Gauntlet”
At the same time, Pilon was also working behind the scenes to advance the growing libertarian insurgency. One of his key contributions came in 1983, when he approached his future colleagues at the Cato Institute with the idea for a conference devoted to the topic of “Economic Liberties and the Judiciary.” In a lunch meeting with Cato president Ed Crane and Cato Journal editor James Dorn, Pilon pitched the idea of bringing together prominent libertarian and conservative experts to draw attention to the widening debate. “On the back of a napkin,” Pilon remembered, “I sketched out who should be there and what should be covered, and a year later it was put together and held in a hotel here in Washington.”31
The result was a seminal event in the evolution of modern legal conservatism. Held in October 1984, the Cato conference attracted a standing-room-only crowd of Washington insiders. Among the invited participants was University of Chicago law professor and rising libertarian star Richard Epstein, who argued that the judiciary should play an active role in defending economic liberty (much as it did in cases such as Lochner v. New York), and Antonin Scalia, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, who advanced the Borkean (and Oliver Wendell Holmesian) view that the courts should defer to the political branches on such matters.
“The Supreme Court decisions rejecting substantive due process in the economic field are clear, unequivocal and current,” Scalia declared. He added that “in my view the position the Supreme Court has arrived at is good—or at least that the suggestion that it change its position is even worse.” Scalia clarified that he was not personally hostile to the idea of economic liberty—far from it. “Rather, my skepticism arises about misgivings about, first, the effect of such expansion on the behavior of courts in other areas quite separate from economic liberty, and second, the ability of the courts to limit their constitutionalizing to those elements of economic liberty that are sensible.” The best course, he concluded, was for the courts to adopt a thoroughgoing posture of judicial restraint. “In the long run, and perhaps even in the short run, the reinforcement of mistaken and unconstitutional perceptions of the role of the courts in our system far outweighs whatever evils may have accrued from undue judicial abstention in the economic field.”32
Rising in response, Richard Epstein tossed aside his prepared remarks and instead launched an impromptu attack on Scalia’s call for judicial deference. “Scalia’s position represents the mainstream of American constitutional theory today,” he began. “My purpose is to take issue with the conventional wisdom.”33 Under the view endorsed by Scalia, Epstein declared, “it is up to Congress and the states to determine the limitations of their own power—which, of course, totally subverts the original constitutional arrangement of limited government.” The Scalia view, Epstein said, ignores the Constitution’s “many broad and powerful clauses designed to limit the jurisdiction of both federal and state governments,” as well as those clauses “designed to limit what the states and the federal government can do within the scope of their admitted power.”34 Just compare “the original Constitution with the present state of judicial interpretation,” he continued, and “the real issue becomes not how to protect the status quo, but what kinds of incremental adjustments should be made in order to shift the balance back toward the original design.” Taking the text of the Constitution seriously, Epstein concluded, requires “some movement in the direction of judicial activism”35 on behalf of economic rights.
This debate brought the libertarian-conservative divide into the spotlight. “That’s why the conference was so important as a benchmark,” Pilon later explained. “For the first time, libertarians threw down the gauntlet.”36
Building on the success of that conference, the Cato Institute and its libertarian allies proceeded to turn up the heat on the Bork-Scalia approach. The next major offensive came in 1986 when Cato published a short book by the Harvard political scientist Stephen Macedo carrying the provocative title The New Right v. The Constitution. Macedo’s target was the majoritarian jurisprudence of Bork and Scalia. “When conservatives like Bork treat rights as islands surrounded by a sea of government powers,” Macedo wrote, “they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”37 That philosophical stance would later animate Cato’s brief in the Lawrence case challenging Texas’s ban on homosexual conduct.
Meanwhile, at the University of Chicago, Richard Epstein was putting the finishing touches on the book that would make him one of the premier names in both libertarian and conservative legal scholarship. Published in 1985 by Harvard University Press, Takings: Private Property and the Power of Eminent Domain revolutionized both the academic and political debates over property rights and the Constitution. Drawing from law, philosophy, economics, and history, Epstein advanced a sweeping challenge to the constitutional underpinnings of the modern regulatory state. Pointing to the text of the Fifth Amendment, which forces the government to pay just compensation when it takes private property for a public use, Epstein reasoned that any “taking” of an individual’s property, whether it is done through physical seizure or government regulation, triggers the just compensation requirement. Furthermore, because “representative government begins with the premise that the state’s rights against its citizens are no greater than the sum of the rights of the individuals whom it benefits in any given situation,” a forced taking could only be legitimate if it left “individuals with rights more valuable than those they have been deprived of.”38
In practical terms, Takings argued that “the eminent domain clause and parallel clauses in the Constitution render constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers’ compensation laws, transfer payments, progressive taxation.”39 As a corollary, the federal courts were expected to curtail or invalidate such government practices under Epstein’s reading of the Constitution.
The anti-majoritarian implications of this approach were not lost on the members of the conservative old guard. Bork himself rejected Epstein’s views as “not plausibly related”40 to the Constitution, while Charles Fried, who served as Ronald Reagan’s solicitor general between 1985 and 1989, later complained about Epstein’s pernicious influence on many of the young conservative lawyers then working in the Reagan Justice Department. Those lawyers, Fried recalled in his memoir, “many drawn from the ranks of the then-fledgling Federalist Society and often devotees of the extreme libertarian views of Chicago law professor Richard Epstein—had a specific, aggressive, and it seemed to me, quite radical project in mind: to use the Takings Clause of the Fifth Amendment as a severe brake upon federal and state Regulation.”41
Epstein’s radical position soon became so famous—some might say infamous—that it was even used in an attempt to derail a conservative Supreme Court nominee. During Clarence Thomas’s 1991 Supreme Court confirmation hearings, before Anita Hill’s explosive allegations of sexual harassment claimed the headlines, Senator Joseph Biden of Delaware tried to discredit Thomas by linking him to Epstein, pointing to a speech Thomas had once given to a conservative audience in which the future justice said he found something attractive in Epstein’s arguments. Biden even theatrically waved around a copy of Takings to make his point, prompting one libertarian publication to quip that Biden’s approach was tantamount to asking, “Are you now or have you ever been a libertarian?”42
Theatrics aside, Biden was right to worry. As we’ll see in the coming chapters, Clarence Thomas would indeed reveal a libertarian streak in several areas of the law.
“Judicial Responsibility”
These various libertarian currents came to a head with the establishment of the Cato Institute’s Center for Constitutional Studies in January 1989. In his original October 1988 proposal for the center, an eighteen-page, single-spaced document, Roger Pilon placed heavy emphasis on the libertarian vision of an active judiciary committed to protecting a wide range of fundamental rights, an approach that openly challenged the reigning legal orthodoxies on both the left and the right. “This ‘third position’—which in truth is the original position of the Founders—calls upon judges to interpret the broad language of the Constitution neither by deferring to legislative majorities nor by consulting contemporary social values,” Pilon wrote, “but rather by repairing to the moral, political, and legal theory of natural rights and individual liberty that has stood behind and informed the Constitution from its inception.”43
Not only would the proposed Center for Constitutional Studies provide a headquarters for the libertarian insurgency in its escalating campaign against the legal establishment, Pilon argued, it would also serve as a sort of shadow university for libertarian legal scholarship, publishing and promoting such work through books, studies, and articles, as well as through conferences, speeches, and other events aimed at reaching a wider audience. “If the price of liberty is indeed eternal vigilance,” Pilon wrote, “then one form that vigilance takes, especially in the age of communications, is constant attention to the ideas that support the institutions of liberty,”44 including the idea of “a return to judicial responsibility.”45 Over the coming decades, Cato’s Center for Constitutional Studies would play precisely that role in the growing national debate over the courts. All things considered, it would be difficult to overstate Cato’s influence, particularly in terms of pushing the conservative legal movement in a more libertarian direction.
Which brings us back to Lawrence v. Texas and the looming Supreme Court battle over gay rights. When Roger Pilon saw that case coming up in late 2002, he knew immediately that it was a perfect fit for Cato’s mission. Working in cooperation with Yale law professor William Eskridge, a leading authority in the areas of gay rights, equal protection, and criminal justice, Pilon, plus his Cato colleague Robert A. Levy, sat down to map out a legal strategy for Cato to use when tackling the case. “Bob, Bill, and I got together over the holidays at Bob’s place up in Chevy Chase,” Maryland, Pilon remembered. “That was the beginning of it.”46 The final brief, written by Eskridge and edited by Pilon and Levy, was then submitted to the Supreme Court several months ahead of the scheduled oral arguments.
The Cato brief raised two principal challenges to the Texas ban on homosexual conduct. First, it framed the case as a conflict between the individual liberty that all Americans should rightfully enjoy and an illegitimate exercise of state power by overreaching Texas officials. “America’s founding generation established our government to protect rather than invade fundamental liberties, including personal security, the sanctity of the home, and interpersonal relations,” the Cato brief argued. “So long as people are not harming others, they can presumptively engage in the pursuit of their own happiness. . . . A law authorizing the police to intrude into one’s intimate consensual relations is at war with this precept and should be invalidated.”47
Second, drawing heavily from Eskridge’s pioneering book Gaylaw, the brief surveyed some 200 years of American history to show that while sodomy laws may have been on the books since the nation’s founding, those laws were originally directed overwhelmingly at predatory and public acts (not private consensual conduct) and were largely aimed at the protection of children and other vulnerable groups. Regulations aimed specifically at adult homosexual conduct, on the other hand, only began to appear in the mid-twentieth century. In other words, Texas’s Homosexual Conduct Law could find no refuge by trying to place itself in a lengthy historical tradition. “Sodomy law’s twentieth century intrusion into the private lives and homes of gay people is a regulatory expansion that violates the Constitution,”48 the brief argued.
That dual emphasis on liberty and history would help shape the Supreme Court’s decision.
Gay Rights on Trial
The Supreme Court heard oral argument in Lawrence v. Texas, case number 02–102, on the morning of March 26, 2003. Up first at the lectern that day was Washington lawyer Paul M. Smith, representing Lawrence and Garner in their challenge to the Texas statute. “The State of Texas in this case claims the right to criminally punish any unmarried adult couple for engaging in any form of consensual sexual intimacy that the State happens to disapprove of,” Smith began, explaining to the Court that this approach violated the fundamental right of all persons under the Fourteenth Amendment “to be free from unwarranted State intrusion into their personal decisions about their preferred forms of sexual expression.”49 Because the state was unable to offer any justification for its restriction except “we want it that way” and “we don’t want those people over there to have that same right,”50 Smith argued, the sodomy law must be struck down as an illegal exercise of government power.
“You can put it that way,” responded Justice Antonin Scalia, reacting to Smith’s characterization of the state’s motives, “you can make it sound very puritanical.” But Scalia failed to see why the majority’s disapproval of homosexuality did not qualify as a permissible basis for legislation. “These are laws dealing with public morality,” Scalia stressed. “They’ve always been on the book, nobody has ever told them they’re unconstitutional simply because there are moral perceptions behind them.”51 As Scalia saw it, the only question that mattered was whether a cognizable constitutional right was at stake. “Any law stops people from doing what they really want to do,”52 he told Smith, but that fact alone does not make any of those laws unconstitutional. Scalia left no doubt he believed the majority was entitled to write its moral views into law, including when those views made private homosexual conduct a crime.
It was the libertarian-conservative debate in a nutshell. Does the majority have the right to rule in wide areas of life simply because it is the majority? Or does individual liberty come first, a fact that requires the government to provide the courts with a legitimate health or safety rationale in support of every contested regulation?
That philosophical divide would be thrown into even starker relief once Charles A. Rosenthal, the district attorney of Harris County, Texas, rose in defense of his state’s Homosexual Conduct Law. “Texas has the right to set moral standards and can set bright line moral standards for its people,” Rosenthal told the Court. “And in the setting of those moral standards, I believe that they can say that certain kinds of activity can exist and certain kinds of activity cannot exist.”53
Justice Stephen Breyer quickly pushed back against Rosenthal’s insistence that public morality alone offered a sufficient justification to sustain the law. What about banning other things a majority of the citizenry might find immoral, Breyer asked him. “People felt during World War I that it was immoral to teach German in the public schools,” he observed, referring to the Supreme Court’s 1923 decision in Meyer v. Nebraska, which struck down that state’s ban on foreign-language instruction for children (over the dissent of Justice Oliver Wendell Holmes). “Would you say that the State has every right” to pass a law like that? “See, the hard question here,” Breyer continued, “is can the State, in fact, pass anything that it wants at all, because they believe it’s immoral? If you were going to draw the line somewhere, I guess you might begin to draw it when the person is involved inside his own bedroom and not hurting anybody else.”
As Rosenthal began to answer Breyer’s questions, however, a seemingly impatient Scalia jumped back in to supply his own answer. “The rational basis is the State thinks it immoral just as the State thinks adultery immoral or bigamy immoral,” Scalia declared.
“Or teaching German,” Breyer immediately shot back.
“Well,” Scalia began to respond, before Chief Justice William Rehnquist promptly silenced them both. “Maybe we should go through counsel, yes,”54 Rehnquist gruffly commanded. It would not be the last time Breyer and Scalia debated judicial philosophy on the bench—or off.
Rosenthal remained at the lectern for another eight minutes answering the justices’ questions, but by that point it was clear to most observers that the damage was done to his side of the case. Texas had seemingly failed to convince a majority of the Court that its law rested on anything more than a moral disapproval of homosexuality, and that justification alone appeared very unlikely to persuade five or more justices to vote in support of the statute.
Exactly three months later, on the morning of June 26, the Supreme Court dispelled any remaining doubts by announcing its decision in the case. Not only was the Texas statute struck down, the Court declared, but the 1986 decision in Bowers v. Hardwick was overruled as well.
“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places,” began the majority opinion of Justice Anthony Kennedy. Moreover, “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”55 In the Court’s view, that autonomy clearly included the private, consensual behavior at issue in the case. Having established that the constitutional guarantee of liberty was at stake, Kennedy continued, the burden therefore fell squarely on the state to justify its intrusion. Since Texas had failed to do so, outside of simply pointing to the majority’s moral opprobrium toward homosexuality, the law failed to serve a legitimate government purpose and was declared to be null and void. Among the authorities relied on to support this position was the Cato Institute brief, which Kennedy twice cited approvingly, essentially adopting the brief’s broad libertarian stance and detailed historical analysis as the Court’s own. As for the seventeen-year-old decision in Bowers v. Hardwick, Kennedy continued, “its continuance as precedent demeans the lives of homosexual people.” That ruling “was not correct when it was decided,” he held, “and it is not correct today.”56
“A Court That Is Impatient of Democratic Change”
Writing in dissent, Justice Antonin Scalia accused his colleagues in the majority of abandoning all pretense of fair and impartial judging. “Today’s opinion is the product of a Court,” he wrote, “that has largely signed on to the so-called homosexual agenda.” Never mind that most Americans do not subscribe to that agenda, he continued, the Court has forgotten its role as a neutral voice in our democratic system and “taken sides in the culture war.”57
What’s more, Scalia complained, the Lawrence majority had just upended the Court’s own precedents in order to engage in a bout of libertarian judicial activism. Pointing to the Court’s long line of post-New Deal jurisprudence, where in case after case the Supreme Court had said that only “fundamental” rights are entitled to strong judicial protection, Scalia accused the Court of inventing a new fundamental right to homosexual sodomy without having the courage to come right out and say so. Texas’s Homosexual Conduct Law “undoubtedly imposes constraints on liberty,” Scalia observed. “So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery,”58 he wrote, thereby linking the rationale in Lawrence to the Court’s 1905 ruling in Lochner, which overruled a maximum hours law for New York bakers. Yet according to the legal regime that reversed Lochner and has been in place since the New Deal, Scalia summarized, a mere constraint on liberty was not enough to trigger searching review by the courts. This case called for judicial deference, Scalia maintained, not judicial scrutiny. To qualify as a fundamental right, he continued, pointing to the Court’s previous cases, that right must be “deeply rooted in this Nation’s history and traditions.”59 The right of homosexuals to commit sodomy, Scalia announced, plainly failed to meet that test. “What Texas has chosen to do is well within the range of traditional democratic action,” he concluded, “and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.”60
Scalia had a point. In a long line of cases stretching back to the 1938 ruling in United States v. Carolene Products Co., the Supreme Court has routinely enforced a distinction between “fundamental” rights, such as free speech, which are entitled to searching judicial protection, and other rights, such as economic liberty, which are not. Scalia was also correct when he said that the Court had developed a test over the years to determine whether or not a particular right would be recognized as fundamental, and he was correct yet again in saying that Kennedy’s majority opinion in Lawrence failed (or refused) to apply that test in order to determine whether or not gay rights should now be counted as fundamental under the Court’s precedents.
But was Scalia also correct when he said that Kennedy’s approach in Lawrence violated the Constitution? The members of the libertarian legal movement thought not, and one of its leading figures promptly stood up to claim Lawrence as a victory for their approach to the law. Writing on the website of National Review, libertarian Boston University law professor Randy Barnett, who in 2012 would be described as “the intellectual architect”61 of the legal challenge to President Barack Obama’s health care law, made the case that Kennedy’s opinion in Lawrence was a long-overdue “libertarian revolution” against the misguided judicial deference first imposed on America during the Progressive and New Deal eras.
“If you reread his opinion,” Barnett wrote, “you will see that Justice Kennedy never mentions any presumption to be accorded to the Texas legislature. More importantly, he never tries to justify the right to same-sex sexuality as fundamental.” Instead, Barnett continued, Kennedy “puts all his energy into demonstrating that same-sex sexual freedom is a legitimate aspect of liberty—unlike, for example, actions that violate the rights of others, which are not liberty but license.”
In other words, the Supreme Court had settled a major case by rejecting the sweeping judicial deference championed by the likes of Oliver Wendell Holmes, Felix Frankfurter, and Robert Bork. On top of that, the Court had done so by breathing real life into the promise of liberty guaranteed by the Fourteenth Amendment, the very thing libertarians have been urging since the time of Justice Stephen Field. As for Scalia’s Lawrence dissent, Barnett wrote, it was “both entirely predictable and remarkably feeble.” To say that the majority has the right to rule simply because it is the majority, Barnett argued, is the worst sort of circular logic. “This judgment of morality means nothing more than that a majority of the legislature disapproves of this conduct, which would be true whenever a legislature decides to outlaw something,” he wrote. “Such a doctrine would amount to granting an unlimited police power to state legislatures.”62 Put differently, the judiciary is supposed to slam the brakes on the tyranny of the majority, not hit the gas.
It was the 1984 Epstein-Scalia debate all over again, except this time Scalia was a justice on the U.S. Supreme Court, and he was fighting a rearguard action to keep the libertarian insurgency at bay. Nor would it be the last time that Scalia and his fellow justices found themselves under fire from the libertarians. Over the coming decade, on issues ranging from property rights to gun control to medical marijuana, the libertarian legal movement would push the Supreme Court repeatedly to endorse its broad constitutional vision of personal and economic freedom. The battle for control of American law was about to heat up.