Ilya Somin of Volokh has a disagreement with Michael Dorf over whether Justice Souther is/was a “Burkean conservative”. A comment by Dorf at his blog held up Justices Harlan & Frankfurter for comparison as conservatives of the past vs the radical originalists/textualist/”strict constructionists” of the present. As the latter was not discussed in Somin’s post I decided to look him up on Wikipedia. Everything before his ascent to the Supreme Court indicated being closer to a communist fellow-traveler than a conservative, but once he was there he behaved in an odd way. What jumps out at me is his take on federalism. In Irvin v. Dowd he said “The federal judiciary has no power to sit in judgment upon a determination of a state court… Something that thus goes to the very structure of our federal system in its distribution of power between the United States and the state is not a mere bit of red tape to be cut, on the assumption that this Court has general discretion to see justice done”.

Somin has earlier discussed the “special case of Justice Breyer”, who is widely recognized as a liberal but has an ideology of judicial restraint. What’s notable is that Breyer advocates restraint specifically for federal agencies, whereas it is state law that is most frequently struck down by the Supreme Court (and the federal government more often given leeway). As a radical anti-federalist I don’t want the national government to exist in the first place and think state Supreme Courts and constitutions could handle all that’s necessary (leaving aside the issue of whether states should be broken up even further), but mine seems to be a minority opinion even on the right or among libertarians that I’m guessing would be laughed at in any law school today (one of the many reasons I disregard others advice that I become a lawyer). Kevin Gutzman seems to believe in something like that, which is why he shared my unease (or should I say that I shared his, as he was more full-throated in denunciation?) regarding D.C vs Heller. Stephan Kinsella (an actual lawyer) had been making similar points against “centralist libertarians” regarding Kelo v. New London. I earlier discussed judicial restraint here. Like Orin Kerr at Volokh, I’m more sympathetic to Burkeanism (or hostile to rationalism) and this leads me to be more receptive to restraint generally (so this could apply as well to a state Supreme Court ruling on state law) even if I simultaneously favor radical libertarian policies & an “original meaning” view of the law. It would optimally be the case if those ideas were internalized by legislators and even the general public, but I suppose Somin would say that’s a pipe dream.

There are parallels here to Bryan Caplan’s disagreement with Robin Hanson on whether economists should favor liberty vs efficiency, with Hanson’s argument resting in part on economists being viewed as honest brokers that parties will seek out for good deals (with Hanson even specifically mentioning judges respected for upholding the rule of law, and perhaps surprisingly not advocating a “law and economics” efficiency maximization criteria for them as well). I would want economists and judges with very different ideologies from my own to put such “neutral” interests over their own ideals, so it would be a bit hypocritical of me to make an exception for those I agree with.

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