Supreme Court observers have expressed surprise and some have voiced criticism that Neil Gorsuch has been so assertive at oral argument and in his opinions so early in his tenure. Most justices have taken some time to decide how to approach this very important job. Justice Stephen Breyer in fact claimed he was “frightened to death” for his first three years.
But Gorsuch’s confident performance flows directly from his formal conception of law. Being a Supreme Court justice for a formalist is no different from being any other kind of judge and in particular no different from being the Court of Appeals judge Gorsuch had been for over ten years. Under this view, the lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think. Thus, as a formalist and experienced judge Justice Gorsuch was able to act forcefully from day one on the Supreme Court.
In contrast, for non-formalists like Justice Breyer, the work of the Supreme Court is fundamentally different from that of other judges because in many cases justices must act more like pragmatic statesmen rather than formalist jurists.
As a classical liberal, I regard libertarianism as I would a wilder, younger brother. Libertarianism is younger because it is largely a product of modernity, while classical liberalism is more rooted in the 18th and 19th centuries. It is wilder, because it posits that the public-good function of the state is more limited and the externalities less frequent than I and other classical liberals believe. Yet the philosophies are close kin: they both see that the state poses a perpetual danger to its citizens, only disagreeing at the margin on when it is necessary to relax the strictures on governmental action. And at least with the most sensible libertarians and classical liberals, these disagreements are largely empirical.
Thus, in a race where the Republican candidate for President is careering away from classical liberalism and the Democratic candidate is flirting with the socialist elements of her party, a classical liberal might find a natural home in the Libertarian Party. Sadly, however, the Libertarian ticket has taken some important positions hostile to liberty. Begin with religious freedom.
In the week that a new organization, Heterodox Academy, was established to press for more ideological diversity in academic life, the learned association in my own profession showed how much it is needed. The Association of American Law Schools (AALS) sent around a notice of its prospective annual meeting, highlighting its most prominent speakers. Of the thirteen announced, none is associated predominantly with the Republican party, but eleven are associated with the Democratic Party. Many are prominent liberals. None is a conservative or libertarian.
Five are judges, including Stephen Breyer, all appointed by Democrats. Another is the incoming Senate leader of the Democrats. Three others contributed predominantly to Democrats. One for whom no contributions could be found held a fund raiser for President Obama. Another worked for the Democratic side of the House Judiciary Committee during the impeachment of President Clinton.
It is true that Michael Bloomberg is also speaking. He has been at various points a Democratic and a Republican and is now an independent. Perhaps the AALS thought that a single person could create diversity through his many political avatars! But seriously, Bloomberg, who has crusaded for gun control and limitations on permissible ounces in a sugary soda, does not resemble a conservative or libertarian. He ran as a Republican in 2001 for Mayor of New York City because it was the nomination he could acquire.
Now my point is not to disparage the highlighted speakers. They are all eminent men and women.
McCutcheon v. FEC reveals fundamental differences between the Roberts Court majority and the dissenters about the First Amendment’s protection of political speech. The justices in the majority asserted the traditional view that the First Amendment is an individual right. In contrast, Justice Breyer argues for the McCutcheon dissenters that the First Amendment is in part a “collective right,” and thus government interests in favor of campaign finance regulation are not “to be weighed against the constitutional right to political speech. Rather they are interests represented in the First Amendment itself.” The latter view makes it much easier to upheld government restrictions that are targeted at resources to support speech at election time.
To support his view of the First Amendment as embodying a “collective right,” Breyer appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents. But the materials he cites undermine his claims. First, he purports to demonstrate that James Wilson believed that “the First Amendment would facilitate a ‘chain of communications between the people and those to whom they have committed the exercise of the powers of government,” by quoting a snippet from a lecture by Wilson on the Constitution.
But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer states, but in a discussion of the novelty and virtue of representative government, as opposed to “monarchical, aristocratical, and democratical” forms of government.