SCOTUS heads toward the cliff.

• Author: O'Donnell, Michael
• Position: Overruled: The Long War for Control of the U.S. Supreme Court; American Justice 2014: Nine Clashing Visions on the Supreme Court - Book review

Overruled: The Long War for Control of the U.S. Supreme Court

by Damon Root

Palgrave Macmillan Trade, 288 pp.

American Justice 2014: Nine Clashing Visions on the Supreme Court

by Garrett Epps

University of Pennsylvania Press, 188 pp.

Conservatives have made the Supreme Court radical. But not radical enough for libertarians.

What is the difference between judicial conservatives and judicial libertarians? You will not hear many libertarians protest the Roberts Court's recent trend to give corporations First Amendment rights, such as the right to donate to political campaigns (Citizens United) and the right to oppose contraceptive coverage on religious grounds (Hobby Lobby). Conservatives and libertarians sparred bitterly over turf and tactics in the litigation to recognize Second Amendment rights for gun owners. Yet they had the same ultimate goal, and when the Supreme Court handed down District of Columbia v. Heller in 2008, both groups rejoiced. And, of course, conservatives and libertarians joined forces in one of the most ambitious Supreme Court campaigns in recent memory: the unsuccessful effort to bring down the Affordable Care Act. Hoping to keep the two factions under the same umbrella, the Federalist Society adopts an ecumenical posture. All who hate government are welcome.

But there is much for a libertarian to dislike in modern conservatism. The conservative legal movement's godfather, Antonin Scalia, is embarrassingly intolerant, and out of touch with young people on social issues. In addition, judicial conservatives have a bad habit of saying one thing and doing another--such as calling for a modest Supreme Court while upending precedents and striking down liberal laws with aplomb. If there is one thing a libertarian cannot abide, it is hypocrisy. Moreover, sometimes libertarians' philosophy leads them to liberal rather than conservative positions. In 2003 the Cato Institute filed an amicus brief attacking Texas's anti-sodomy statute in the watershed case Lawrence v. Texas. If the Supreme Court agrees to review the constitutionality of state bans on gay marriage this term, expect libertarians again to favor gay rights.

Damon Root, a senior editor at Reason magazine, has published a book that traces the differences between judicial conservatives and libertarians, and advances the libertarians' cause. Overruled: The Long War for Control of the U.S. Supreme Court is a sober, well-researched, and thoughtful case for the libertarian point of view on judicial issues ranging from gun control to economic regulation. Like most libertarians, Root cares more about principle than orthodoxy; hence his book is no partisan screed. Yet he is representative of libertarians in another way as well. His positions sound reasonable until you begin thinking through their implications, at which point you realize just how radical they are.

Take, for instance, the dean of judicial libertarians, Richard Epstein, who teaches at the University of Chicago Law School. Root discusses Epstein's work in favorable terms at several points in his book. Epstein believes that the Fifth Amendment's "takings" clause--"nor shall private property be taken for public use, without just compensation"--should apply not merely to...