The Classically Liberal Roberts Court
When John Roberts was nominated by President George Bush to be the next Chief Justice of the Supreme Court after Chief Justice William Rehnquist, it marked a shift in constitutional jurisprudence. With some exceptions, the Roberts Court has produced classically liberal decisions on a whole host of constitutional issues. Classically liberal decisions have been produced in the realms of free speech, campaign finance, gun rights, gay rights, searches and seizures, and religious freedom. The member Justices have produced these decisions consistent with natural law and libertarianism both unanimously and in close decisions, including decisions involving Justices voting against their traditional liberal-conservative blocs. Despite creating a litany of libertarian decisions, no single member of the Roberts Court self-identifies as a libertarian. This has puzzled academics and commentators, leading many to write off the Roberts Court as simply inconsistent. The Justices of the Roberts Court, including new Justices Sonia Sotomayor and Elena Kagan, offer differing jurisprudences richer than the popular bimodal right-left paradigm. Both liberal and conservative Justices, despite their vast differences on Constitutional topics like textualism and purposivism, have arrived at classically liberal conclusions in their rulings, advancing individual rights instead of government regulations. The Declaration of Independence, Constitution, and Bill of Rights were written with natural law and classical liberal principles in the fore-front of the Founder’s minds, which means that a Supreme Court charged with upholding the Constitution should produce results consistent with libertarianism. A libertarian impulse grounded in natural law sets the stage for the Roberts Court deciding opinions that are classically liberal. This libertarian instinct model, however, is not perfect and does not explain many decisions because the Court is not intentionally libertarian. Although no single Justice is classically liberal, however, the Roberts Court as a whole is more classically liberal than any of its members.
On September 29, 2005, John Roberts became Chief Justice of the United States Supreme Court. For the past ten years, he has led the Court in making landmark decisions across a whole host of issues. However, the jurisprudence of the Roberts Court has confounded many. The Roberts Supreme Court is often criticized as “inconsistent” because the member Justices swing from their liberal and conservative blocs instead of remaining predictably entrenched. Occasionally, the Justices themselves complain about the Court’s in-consistencies.2Sometimes, however, Justices are praised for voting against their traditional blocs. The Justices of the Roberts Court of-fer much more than two-dimensional partisan divisions. I offer a different interpretation that the Roberts Court’s oscillation reflects classically liberal values embedded in the Constitution and the Justices’ own libertarian-esque judicial methodologies. The Declaration of In-dependence, Constitution, and Bill of Rights provide broad protections of individual liberty and autonomy. This libertarian model of government envisioned by the Founders should produce results in the Supreme Court consistent with those same principles. The Justices of the Roberts Court have consistently produced many classically liberal decisions that reaffirm the Constitution’s natural rights protections. Classically liberal decisions have been produced in the realms of free speech, campaign finance, gun rights, gay rights, searches and seizures, and religious freedom. A libertarian impulse, despite its decentralized and fractured nature, forces the Justices to respect individual liberty and in fact serves as a makeshift shield against heavy handed government intrusion. Because the classical liberal element is unconscious and not intentional, the libertarian dimension of the Roberts Court does not explain every decision or doctrinal developments. Although no single Justice on the Roberts Supreme Court is classically liberal, the Roberts Court as a whole is more classically liberal than any of its individual member Justices.
