Root traces the battle over judicial restraint to a notorious 1873 Supreme Court decision known as the Slaughterhouse Cases. The decision concerned a group of butchers who challenged a Louisiana law that, ostensibly for health reasons, relocated and consolidated the New Orleans slaughterhouse industry into a state-controlled monopoly. The butchers sued, claiming that the law violated their rights as small-business owners. It was the Supreme Court’s first chance to interpret the new Fourteenth Amendment, passed in the wake of the Civil War and guaranteeing citizenship, due process, and equal protection to all people born or naturalized in the United States. But the Court read the great amendment narrowly and rejected the butchers’ claims. Justice Stephen Field dissented and unwittingly became the patron saint of the libertarian legal movement.

Note what has happened here: libertarians claim as their hero a judge who from the outset saw the Civil War amendments as a shield with which white people could protect their property. Of course, the amendment is broadly and grandly worded, and encompasses far more than the antislavery intentions that propelled it into existence. And most observers today agree that Slaughterhouse was wrongly decided. But it is distasteful to raise up Justice Field as the Fourteenth Amendment’s champion: Field, who voted with the majority in Plessy v Ferguson that separate is equal; Field, whose majority vote in the Civil Rights Cases restricted the Fourteenth Amendment’s ability to target the Ku Klux Klan; Field, who outrageously suggested in Slaughterhouse that Louisiana had treated the white butchers as “slaves” under the Thirteenth Amendment. Had Field gotten his way in both Plessy and Slaughterhouse, the Fourteenth Amendment would perversely stand for property rights but not freedom from racial discrimination.

If Field is Root’s hero, then Oliver Wendell Holmes Jr is his villain. This again is a strange choice. Holmes is regarded across the political spectrum as one of the great justices in the history of the Supreme Court. His elegant opinions on subjects from contracts to torts to habeas corpus did more for the development of American common law than those of perhaps anyone since John Marshall. And, alongside Louis Brandeis — another justice whom libertarians disdain — Holmes helped establish a strong First Amendment. Freedom of speech being the most elemental of rights, one would think that libertarians would embrace Holmes. But they dislike him because he was the Court’s leading proponent of judicial restraint; he famously dissented in Lochner. Courts should not dream up constitutional rights where none exist and interfere with legislatures, said Holmes. Yes, they should, libertarians retort.

Root completely misses the reason that Holmes is revered. Unlike most proponents of judicial restraint, Holmes did not let his politics interfere with his judging. It is well and good for a social conservative like Robert Bork to call for a restrained court when the effect of this is to uphold state laws banning abortion and contraception. Those are results that he wanted, making it impossible to tell whether his methodology was in service of his politics or vice versa. But Holmes was the closest thing to an apolitical justice that we’ve had. Root does not mention this, choosing to associate Holmes with the Progressive Movement, but the great jurist’s own economic views were distinctly libertarian. The fact that he refused to write them into constitutional law when he had a chance in Lochner reveals him to be a jurist of rare principle.

This is not the only inconsistency in judicial libertarianism. In a real sense it is a movement on a collision course with itself. Root calls for activist courts to strike down laws that hamper individuals’ freedom of contract. But states pass far more laws than Washington does. And states are supposed to be the laboratories of democracy; libertarians profess to believe in local rather than centralized government. But Root seems to think the more laws the courts invalidate, the better. Here we approach the nihilistic side of libertarianism: less government is better government, wherever the trims are made. Libertarianism, so principled, so carefully thought out, does not appear to have grappled with the conundrum of using courts to shrink local government.

—Michael O’Donnell
SCOTUS Heads Toward the Cliff