ZadekpediaDamon Root is a senior editor of Reason Magazine and the author of Overruled: The Long War for Control of the U.S. Supreme Court. He appeared on The Bob Zadek Show to discuss the historical and ongoing conflict between judicial restraint and the protection of individual and economic rights, a conflict framed around landmark cases including Heller v. D.C. and Lochner v. New York Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
On the show
1 appearance, 2014.
- 2014-11-27 · Overruling Government Overreach: Damon Root on the Libertarian Legal Movement · 52:38 — Judicial Restraint and the War for the Supreme Court.
The war for the court
Root described the combatants in what he called a war for control of the Supreme Court as liberals and progressives on one side, and conservatives and libertarians on the other—but also conservatives against libertarians within the ranks of the right. On one side, he said, are advocates of judicial deference or judicial restraint, who argue that the courts are the least democratic branch and should therefore defer to the elected branches and to the will of the people as expressed through lawmakers. On the other side is a vision of the courts as an active check on the other branches, undemocratic by design, stopping the will of the people when the Constitution requires it. Root characterized that second vision as one of the Constitution as a document that protects individual rights and restricts government power, and said libertarians today want the courts to interpret the Constitution that way Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Bob Zadek opened the episode by asking what role the unelected nine members of the Supreme Court should play in affecting everyday life in America and the degree of liberty Americans enjoy, and by asking what rules the Court ought to use to reach its decisions.
The conservative-libertarian schism
Root traced the modern conservative legal movement to a response to liberal court victories of the 1950s and 1960s under the Warren and Burger Courts, and said it was modeled on the civil rights movement’s success through legal means. That movement, he said, grew up over the past 40 years, is extremely influential, has control of the Supreme Court, and is influential within the right and the Republican Party. Zadek suggested the Federalist Society is perhaps the point organization in this; Root agreed it is a key organization Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Within that broader movement, Root said, a libertarian insurgency grew up that disagrees with conservatives on a number of issues, with the real fault line over the role of the courts. He identified privacy—sexual privacy, birth control, abortion—as a key issue for conservatives over the past 30 years, because the right to privacy is unenumerated and not listed in the Constitution. He noted that in 1965 the Supreme Court struck down a Connecticut law banning the sale of birth control to married couples, and that a few years later the Court found a right to abortion within that right to privacy. Conservatives, he said, view those opinions as untethered from the text of the Constitution. Zadek asked whether Justice Scalia was true to that line of thought; Root said Scalia held to it very consistently.
The libertarian legal movement, Root said, disagrees: it holds that there is a right to privacy in the Constitution, that the state should not prevent married couples from obtaining birth control devices to use in the privacy of their own home, and that this is a classic example of government overreach. He said Scalia, Robert Bork and John Roberts apply a deferential philosophy in economic regulation cases as well, treating economic rights and unenumerated rights alike as second-class, and that Scalia debated libertarian law professors over whether the Constitution requires courts to actively protect economic liberty. Root said Scalia’s concern was that a prevalent libertarian view would encourage liberal judges to be more aggressive, and that Bork felt the same way and Roberts appears to as well.
Commerce Clause and the healthcare case
Root said the libertarians, though a very small section of the broader conservative legal movement, waged an aggressive war of ideas to persuade conservatives, and that they had quite a bit of success. In the 2012 healthcare case, he said, one question was whether Congress had authority under the Commerce Clause to impose the individual mandate. He identified Randy Barnett, a law professor at Georgetown, as an architect of that legal challenge and a longtime advocate of a narrow reading of the Commerce Clause. Root said Barnett argued a medical marijuana case at the Supreme Court in 2005 and lost, with Scalia and Kennedy voting against him in favor of broad Commerce Clause power; Zadek called that a terrible decision and named it the Raich case. Root said that seven years later Barnett’s arguments had become the default conservative position, that the entire conservative movement lined up against Obamacare, that Scalia changed his views, and that Roberts held to the older conservative view Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root also pointed to King v. Burwell, crediting Jonathan Adler, a libertarian law professor who writes for the Washington Post, and Michael Cannon at the Cato Institute with creating that legal challenge and identifying the problem with the law.
Occupational licensing and the casket case
Root tied occupational licensing to the libertarian vision of the 14th Amendment as protecting economic rights, including protection from regulations that serve no legitimate health or safety purpose and act as economic protectionism. In the Louisiana casket case, he said, state law required anyone selling a casket to be a fully licensed funeral director, a process involving many hours of study, thousands of dollars in course fees, and embalming 25 dead bodies. Zadek summarized the requirement as applying “just to build a wooden box.” Root noted that Louisiana law permitted burial without a casket and imposed no requirements on casket design or materials, so there were no health or safety regulations dealing with caskets at all. The Institute for Justice brought the case, arguing there was no conceivable justification for the law—the standard under deferential precedents—and the court agreed it failed the smell test on every level. Root said Louisiana fought all the way up to the U.S. Court of Appeals, the level below the Supreme Court, and that Tennessee and Oklahoma also had such laws on the books Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Across episodes
Root’s name recurs in a 2022 episode on student loan debt forgiveness, where guest Elizabeth Nolan Brown cited a piece he wrote about the legal basis for Biden’s action; the episodes show no development of his argument between the two appearances, only the later reference The Student Loan Debt Fiasco (2022).