A Libertarian View on The Reaction To Sotomayor

Will Wilkinson on the reaction to Sonia Sotomayor

God, I hate politics. It really does make people stupid, especially those whose tribe is out of power. When Sonia Sotomayor was nominated, I knew nothing relevant about her judicial philosophy or, much more importantly, about her actual record as a judge. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.

Like Damon Root, I’m in favor of libertarian judicial activism. But I know that Barack Obama is no libertarian, and I knew he wasn’t going to nominate Kozinski or Posner. Too bad! So I was hoping for a relatively centrist liberal who sees some merit in libertarian arguments, especially about the protection of economic rights. As far as I can tell, there is nothing especially worrying about Sotomayor. She’s obviously super-qualified. And from what I’ve read, she seems like a highly competent, fairly moderate liberal who sticks pretty close to the law (which nobody really likes when they don’t like the law!) and is perfectly willing to side with Republican-appointed judges when that seems to her the right thing to do. What are people going batshit crazy over? I don’t get it. And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons. God, I hate politics.

I’ve already given my reaction to the ridiculous Republican response to Sodomayor here and here. With all the Republican whining about judicial activism, which generally means they oppose judges who promote liberal ideas but love judges which promote conservative ideas, it is good to see someone express a different point of view. As our views of liberty have expanded since when the Constitution was written I am perfectly okay with judicial acts to expand upon our liberties. For example, while abortion rights was not something which the Founding Fathers would have specifically addressed, Roe v. Wade was the right call by the courts to apply their ideals of individual liberty and privacy to today. While I think it is a stretch to think the Second Amendment provides a personal as opposed to a collective right to bear arms, I wasn’t especially disturbed by the recent act of judicial activism to declare that such a personal right does exist. In reality virtually everyone supports judicial activism, as long as they are pleased with the decision.


  1. 1
    Mike Ortiz says:

    I think  judicial activism is wrong.  I don’t care whether it’s liberal, libretarian or conservative.  It’s not the job of the Supreme Court to make decisions based on their own feelings or opinions on a given issue.  It is their job to rule based on the letter of the law and the constitution. 

  2. 2
    Fritz says:

    I am quite unhappy that Sodomayor is opposed to an individual right to bear arms, and opposed to any incorporation of that right to state action.

    But that’s certainly would I would expect from this administration.

  3. 3
    Ron Chusid says:

    It will be interesting to hear what she has to say about guns at this point, especially in light of the recent Supreme Court decision. Even if she opposes a right to bear arms, would she oppose what is now precedent established by the Supreme Court? How likely is it to even come up in the near future?

    My gut feeling is that even liberals who oppose ownership of guns are going to be reluctant to reverse such a Supreme Court decision, not wanting to encourage those who desire the reversal of  a certain more controversial decision.

  4. 4
    Fritz says:

    Unfortunately, the Supreme Court did not officially incorporate the 2nd in the 14th in Heller.  The subject will come up in the near future, because municipal gun bans (like Chicago’s) are being litigated.  So “reversal” is not necessary for a whole bunch of constraints.

  5. 5
    b-psycho says:

    In reality virtually everyone supports judicial activism, as long as they are pleased with the decision.

    Exactly.  The average person doesn’t think about the law in terms of precedent or intent anyway, only whether they like it or not.  Besides, if judicial appointments weren’t made w/r/t opinions there wouldn’t be such predictability about who falls where.

    This is actually the reason why the Right had such animosity for Souter for the longest — he surprised them.

  6. 6
    Eclectic Radical says:

    ‘Judicial activism’ is merely the modern GOP attack phrase intended to discredit the theory and tradition of judicial review and judicial prerogative. In our system of checks and balances, the judiciary’s role is to prevent the legislature and executive from violating Constitutional principles. This makes ‘judicial activism’ pretty much necessary. It is also important to note that judges are not only expected to uphold the law, but also principles of justice that frequently conflict with the law.

  7. 7
    Ron Chusid says:

    Besides that, bogus complaints about “judicial activism” let the right pretend to be taking the high ground when they attack judges they disagree with, pretending that it is over a high principle such as this rather than over ideological disagreement.

  8. 8
    Barry says:

    To those of us suffering under the delusion that the Constitution was supposed to “secure the Blessings of Liberty,” Breyer reveals that its purpose was “to create a framework for democratic government — a government that, while protecting basic individual liberties, permits citizens to govern themselves.” But how can it protect “individual liberties” when such protection is precisely what doesn’t allow “citizens to govern themselves”? Or is “basic” actually Breyerspeak for <I>as few as possible</I>? <P> At this point a certain feeling may be creeping over many, an eerie kind of <I>déjà vu</I>. It grows only stronger when Dionne reclaims the mic. “Breyer’s argument,” he explains, “leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people’s representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them.” Now <I>that</I> tore away the disguise, didn’t it? This isn’t the “living document”/”evolving Constitution” rhetoric that the Left’s been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the “intentions” of the Framers of the Constitution — who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms — as his alter ego — the monstrous presence of …


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