Huebert has, in the latest Liberty, an excellent review of Robert Levy and William Mellor's recent book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. Choice excerpt:
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.
Writes Huebert: "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.)" Huebert tells me that Epstein's view seems to be that there's no reason why government schools should have to do something different from private schools with their admission policies (similar to my argument in my LRC article "Supreme Confusion, Or, A Libertarian Defense of Affirmative Action").
Huebert also notes that the authors "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." This reminds me a bit of the fascinating Reason article by Brian Doherty, "It's So Simple, It's Ridiculous", about the income tax protestor types who seem not to realize that the state is just a band of thieves, and who believe that if you only pronounce the right incantation or spell to a tax-paid government judge, you can avoid prison or taxes. (See also Doherty's Five Reasons You Don't Owe Income Tax, Dammit!)