Reason on Who Should Reign Supreme?–or, Justice Kinsella

Reason Online has a feature, Who Should Reign Supreme?: Reason asks libertarian legal experts: Who are your favorites—past, present, and future—on the nation’s highest court?

A few observations. First, I was very impressed that Andrew Napolitano of Fox News said he would nominated Ron Paul to the court. This is quite impressive. I may just have to check out his recent book Constitutional Chaos.

Second–this is supposed to be responses from “libertarian legal experts”. But included are… Nat Hentoff?
Nadine Strossen? Someone named Mike Godwin, and someone else named Kathleen Sullivan, who picked John Paul Stevens as their favorite sitting Supreme Court justice? Someone named Siva Vaidhyanathan, who picked Bill Clinton as his nominee for the Court? (He says: “If only he had not been disbarred!” I didn’t realize you had to be a member of a bar, or even a lawyer, to be on the Court.)

Apparently they picked a lot of civil libertarians and included them as libertarians. How far left has Reason moved?Randy Barnett said he could not find any Supreme Court heroes so didn’t pick one. I can respect that. (Barnett also praises Lochner v. New York (1905), “one of the few decisions in which the Supreme Court exhibited skepticism about a claim of governmental power and protected a liberty not included in the Bill of Rights. By placing the burden on the state to justify its restriction on the liberty of contract in the form of a maximum hours law for bake shop employees (but not owners), Peckham in effect employed a presumption of liberty, which I think should be used to protect all liberties.” Lochner was the case where the feds struck down a New York law based on the–ridiculous, in my view–reasoning that it was covered by the due process clause of the 14th amendment. I do not think this case is an admirable one. Barnett refers to “governmental power” without distinguishing between state and federal. He says there should be skepticism about a claim of “governmental” power. Yes–federal courts should be skeptical about federal power, I agree. But this reasoning seems to imply that states are governments of enumerated powers, that they draw their power from the federal constitution. This is also implied by the power to “place the burden on the state to justify its” laws. I think this gets it wrong, so I disagree.)

In any event, it’s a double insult that they didn’t ask yours truly, given that they picked non-libertarian lefties. But I’ll provide below the response I would have given; it will doubtless be seen by more people here than on Reason Online anyway 🙂

Favorite sitting Supreme Court justice: First, although I’m tempted to go with Barnett’s answer and pick no one, I’ll say Clarence Thomas, although he’s a mixed bag.

All-time favorite Supreme Court justice: Again, I’d have to go with Clarence.

Nominees: Anyone who is a libertarian with a sound view of the Constitution and the importance of original understanding. No need for a lawyer–in fact a non-lawyer might be preferable, since most are lefties and even libertarian ones tend to buy into much of the state’s pronouncements on things like incorporation. Say–me, or Ron Paul, or Lew Rockwell. Walter Block would also be an interesting choice. Well, how about all four of us. That would be fun.


1:31 pm on July 4, 2005