In conjunction with a series of visits to leading law schools in New England, the RWU Law Federalist Society sponsored a lunch and talk by Dr. Roger Pilon, Vice President for Legal Affairs at the Cato Institute (a libertarian think tank) and publisher of the CATO Supreme Court Review. I last saw Roger in the mid-1990s, at a retreat sponsored by the Institute for Justice, on the subject of “Overturning Slaughterhouse” (the bête noir of economic libertarians, that eviscerated the Privileges and Immunities Clause), and I can report that on balance he still thinks the Supreme Court is botching constitutional interpretation despite a significant change in personnel in the intervening years.
In his talk, Dr. Pilon traced libertarian thought from the ancient Greeks, through the constitutional and founding era, and bemoaned the changes wrought by the Progressive Era both legislatively, and then by the New Deal Era Supreme Court. Things have not gotten much better since then in his view, with Justice Kennedy and, perhaps surprisingly, Justice Scalia, coming in for special criticism. He also identified US v. Lopez (1995) (which for a brief time suggested a willingness to curtail sweeping federal legislative power) and last term’s DC v. Heller gun control decision, as rare bright spots. In sum, he is dismayed that there has been so little traction for his preferred approach to deciding cases—a return to a limited government/”enumerated powers” jurisprudence.
Dr. Pilon fielded questions on Run Paul’s run for the Republican presidential nomination, whether a libertarian philosophy was up to the challenge and complexities of the modern world, and whether he thought Chief Justice Roberts “had an agenda.” In order: Paul was too weak on executive power; the verities of limited government never grow old; and yes, Roberts wants to improve the ability of the Court to speak with a unified voice. (Interestingly, this was very similar to the answer given by the Chief Justice when he was asked that exact question during a Q&A with RWU Law students last semester.
