Last week Allan Loudell was waxing poetic on an live interview how the Supreme Court was Conservative on the voting rights act and liberal on the repeal of DOMA, finishing with: ” is it anyones guess what to expect?” I was busy at the time, but thought it was rather easy to figure out. You see, i know a Libertarian and so making the assessment that Justice Kennedy was also a Libertarian, didn’t require much of a leap at all.
When one thinks of Libertarians, one thinks of that tiny party in the middle of a ballot. But Libertarianism has played a dominant role in the US’s formation… It is just that when it strikes, it is not on the ballot. Below I show how Libertarianism easily explains how this court acts….
This past season the Supreme Court heard 75 cases… Of those seventy five, 30% were decided by a vote of 5-4. This is one of the most contentious courts on record. The roundabout average is 22% of its cases decided by 5-4 decisions. However, and this is surprising, almost 50% of its decisions were decided by a 9-0 margin. That is unprecedented as well.
Graph Courtesy of SCOTUS Blog
There appears to be a solid libertarian bias that leans through this court. If progressive, they are libertarian progressives, if conservative they are libertarian conservatives, and if split, then the most libertarian of them all, Justice Kennedy, is the decider.
Let me first touch on those decision made last week. a) Voting Rights Act… If there is no firm reason not to leave it to the states, then leave it to the states… Libertarianism. b) Repeal of Clause 3 of DOMA… If the government is picking favorites of one custom over another, that is not the government’s business… Government needs to butt out… Pure Libertarianism. Those inured in thinking only in terms of “left” and “right” are by their blinders.. baffled. However there is a very clear aim through out this court and that aim clearly states that the government should not be interfering with people’s rights to decide things for themselves.
Furthermore, although this court is very pro business, to call it an business court would still be an error. The human gene concept, that actual genes were not to be patented, was decided in part because doing so would benefit the company that acquired the patent, but hurt those who didn’t. There was no prevailing clause of ownership offered by the plaintiff, since the gene existed long before the company did, so therefore, everyone has a right to it. The decision was business neutral. Though one company lost, all others gained thereby making the decision a neutral one. Very Libertarian. Favorites should not be picked by the government. However if Monsanto in another landmark case, actually did invent the gene, then for a farmer to replant some of the soybeans as farmers have since civilization began, should not happen. Those beans were not his intellectual property, because they were created legally under license by Monsanto. No different than buying a CD and burning copies for one’s friends and acquaintances. Again, very Libertarian. The government should not interfere with either picking or hurting a company in its effort to make money by playing with existing rules.
Likewise the Federal Government should not limit or impose itself or it’s temporary values upon a company doing business overseas. Therefore for the Federal Government forbidding an AIDs vaccine to be used in Africa for infectees caused by prostitution, was illegal. That puritan law was stricken. Government can’t interfere.
And so after this season, federal judicial participation in guilty pleas is now subject to harmless error review; the government can’t involuntary dissolve a parent/childs bonding rights; a person who does not choose to willfully invoke their 5th amendment rights, can have their subsequent silence used against them. A sex offender in the armed services must like every other citizen who is one, register in the state where he resides. Likewise an insurance beneficiary of a previous divorce, can get paid according to original contract, and no state law can override that.
Just “thinking like a Libertarian” has for the most part made one able to predict the outcome of this court with amazing accuracy. It is really contrary to Allan Loudell’s statement, not a mystery after all….. One just has to think outside the Red and Blue Box…