Damon 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, focusing on landmark cases including Heller v. D.C. and Lochner v. New York Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
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 an unelected and least democratic branch and should therefore defer to the elected branches and the will of the people as expressed through lawmakers. On the other side is a vision of the courts as active and aggressive in policing the other branches, undemocratic by design, and stopping the will of the people when the Constitution requires it — a vision of the Constitution as a document that protects individual rights and restricts government power Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Bob Zadek framed the episode around the unelected nine members of the Supreme Court and their role in affecting everyday life in America and the degree of liberty Americans enjoy, asking what the role of the Court has been, what it is, and what it should be. He introduced Root as a senior editor of Reason Magazine and author of Overruled.
The conservative-libertarian legal schism
Root said the conservative legal movement grew up in response to the liberal court victories of the 1950s and 1960s — the Warren and Burger Courts — and was modeled on the civil rights movement achieving success through legal means. That movement, he said, has grown over the past 40 years, is extremely influential, has control of the Supreme Court now, and is very influential within the right and the Republican Party. Zadek suggested the Federalist Society is perhaps the point organization in this, and Root agreed it is a key organization there Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Within that broader movement, Root described a libertarian insurgency that disagrees with conservatives on a number of issues, with the real fault line over the role of the courts. For conservatives of the past 30 years, he said, one key issue has been privacy — sexual privacy, birth control, abortion. The right to privacy is an unenumerated right, not listed in the Constitution. In 1965, Root said, the Supreme Court said there is a right to privacy and struck down a Connecticut law banning the sale of birth control to married couples, and a few years later the Court said that within that right to privacy there is also a right to an abortion. Conservatives, he said, think those opinions were untethered from the text of the Constitution. Zadek asked whether Justice Scalia is true to that line of thought, and Root said Scalia has held to it very consistently.
The libertarian legal movement, Root said, disagrees: it holds that there is a right to privacy in the Constitution and that the state should not be able to prevent married couples from obtaining birth control devices to use in the privacy of their own home, since they are not harming anyone — a classic example of government overreach. Root said people like Scalia, Robert Bork and John Roberts apply that deferential philosophy also in economic regulation cases, treating economic rights and unenumerated rights in a second-class way, and that Scalia has debated libertarian law professors over whether the Constitution requires courts to actively protect economic liberty. Scalia, Root said, has said it does not and would be a terrible idea, with a concern that a prevalent libertarian view would encourage liberal judges to be more aggressive themselves; Bork felt the same way, and Root said John Roberts feels that way as well, which came out in the healthcare case.
Root said it is fair to call it a war because libertarians, a very small section within the broader conservative legal movement, have been waging an aggressive campaign — a war of ideas — trying to persuade conservatives to come around to their point of view, and have had quite a bit of success. He pointed to the 2012 healthcare case, where one question was whether Congress has authority under the Commerce Clause to impose the individual mandate, to make Americans buy health insurance — a debate that has been happening since the New Deal. One architect of that legal challenge was Randy Barnett, a law professor at Georgetown, who has argued for a narrow reading of the Commerce Clause for a long time and thinks the federal government has grown too powerful under a broad reading. In 2005, Root said, Barnett argued a medical marijuana case at the Supreme Court and lost, because the Court said the Commerce Clause is broad enough to trump — California had legalized medical marijuana, the federal government said it was still illegal under federal law, and Scalia and Kennedy voted against Barnett, in favor of a broad Commerce Clause power. Zadek called that a terrible decision and named it the Raich case. Seven years later, Root said, Barnett’s arguments had become the default conservative position, with the entire conservative movement lined up against Obamacare, Scalia having changed his views, and Roberts holding to the older, more old-fashioned conservative view.
Zadek said the libertarian movement is intellectually alive, with brilliant writing and aggressive active scholarship, and that the conversation in America today invariably gives libertarians a seat — often at the head of the table leading the debate. Root agreed, saying the traditional conservative view of deference has fallen out of favor largely on the right, and that more and more conservatives say the court should be aggressive and strike down laws. Zadek listed gay marriage, gun control, legalization or decriminalization of marijuana and other controlled substances, and Rand Paul’s efforts to reduce punishment for low-level drug offenses as libertarian issues now being discussed in America, and said the warriors in the battle against Obamacare are for the most part libertarian or libertarian-leaning attorneys. Root pointed to the King v. Burwell case, saying Jonathan Adler, a libertarian law professor who writes for the Washington Post, and Michael Cannon at the Cato Institute were huge in creating that legal challenge and identifying the problem with the law — a law passed by Congress that nobody in Congress read the whole thing, but those guys read it and found the problems.
Occupational licensing and the Louisiana casket case
Zadek raised occupational licensing as another example of economic liberty abused in the legislature, and asked Root about the casket case in Louisiana involving monks. Root explained that under the philosophy of free labor and the libertarian vision of the 14th Amendment as protecting economic rights, one thing it protects individuals from is government regulations that do not serve a legitimate health or safety purpose and that either try to keep people out of an industry or act as economic protectionism. Occupational licensing, he said, is rife with that sort of abuse Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
In the Louisiana casket case, Root said, state law required that to sell a casket or coffin to someone you had to be a fully licensed funeral director, and becoming one took many hours of study, thousands of dollars in course fees, and embalming what he thought was 25 dead bodies — a year or two of your life. Zadek interjected: just to build a wooden box. Root said it was just to build or even just to sell a wooden box, with no dealing with human remains and no actual funeral director work. Monks there had been building traditional handmade wooden caskets for their own use and then began selling them to fund repairs to their abbey, and the state came after them saying they were not licensed funeral directors. Root added that in Louisiana it was legal to be buried without a casket, there were no requirements as to casket design, and if you were buried in a casket it did not matter what it was made of and the lid did not have to be nailed down — essentially no health or safety regulations dealing with caskets whatsoever in the state. Zadek said it was just protecting the income of the funeral directors, and Root agreed that was the only regulation.
The Institute for Justice, the lawyers Root writes about in the book, brought the case and argued there was no conceivable justification for the law — the legal standard under the deferential precedents being that there is no conceivable legitimate government purpose the law could possibly serve. Root said the court agreed it failed the smell test on every possible level. Zadek observed that Louisiana was astonishingly aggressive in defending the statute, fighting rather than caving, and Root said the state fought all the way up to the U.S. Court of Appeals, the level below the Supreme Court, taking it as far up as it could. Root noted that Tennessee and Oklahoma also had these kinds of laws on the books, and began to say something about the Tennessee one when Zadek interrupted to close the show, thanking Root and reminding the audience that if they believe people ought to have the right to enter into a contract to sell their services, sell anything, free of government interference so long as there is no fraud — the exercise of economic freedom — then they are libertarians.
Across episodes
The excerpts show no development in Root’s treatment across episodes: he appears as the featured guest in the 2014 episode on the libertarian legal movement, and in the 2022 episode on student loan debt forgiveness he is mentioned only in passing, when Elizabeth Nolan Brown says her colleague Damon Root wrote about the matter and Zadek calls it a wonderful piece in Reason Student Loan Debt Forgiveness (2022).
What the sources do not cover
The excerpts do not state Root’s educational background, the date or publisher of Overruled, or the outcome of the King v. Burwell case. They do not give the holding of Heller v. D.C. or Lochner v. New York, beyond the episode’s description of the topics discussed, nor the name of the 1965 birth control case or the 2005 medical marijuana case beyond Zadek’s naming of Raich. The Louisiana casket case is not named, and the excerpt breaks off mid-sentence as Root begins to describe the Tennessee law.
Episodes
1 appearance, 2014–2014.
- Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014) — Judicial Restraint and the War for the Supreme Court. Senior Editor of Reason Magazine