George Leef devotes his latest Forbes column to the next opening on the nation’s highest court.
Before long, there will be some vacancies on the Supreme Court. Americans who care about the relentless expansion of governmental power that’s turning us from a nation of free, self-reliant citizens into a gaggle of supplicants should start thinking about the kind of justice they’d like to see on the Court.
More precisely, they should start thinking about the kind of judicial philosophy they’d like to see.
The nation’s population of “progressives” (i.e., people who believe, contrary to all reason and evidence, that America needs still more government dictates) has had little if any occasion to lament the justices nominated by Democratic presidents. The “liberal” bloc on the Court hardly ever disappoints them.
In contrast, libertarians, conservatives, constitutionalists, and people who just dislike the Nanny State have often lamented the nominees of Republican presidents, including Earl Warren, William Brennan, Sandra Day O’Connor, David Souter, and most recently, John Roberts. Those justices often put their stamp of approval on federal powers that would have left the Founders aghast.
It is imperative that we avoid making similar mistakes in the future. I believe that the most effective way of identifying nominees who won’t turn tail when pressured to vote for unconstitutional power is to find judges who have expressed a coherent philosophy favoring liberty.
That means more than having written a few opinions favoring conservative litigants or giving talks at Federalist Society meetings. It means a principled commitment to what Georgetown law professor Randy Barnett calls “the presumption of liberty” in his magisterial book Restoring the Lost Constitution.
