Eugene Volokh expresses concern about the consequences of having an actual liberal on the Supreme Court:
And she might move that seat further to the left, if she proves to be a solid liberal, like Justices Brennan and Marshall, as opposed to a moderate liberal, like Justice Souter and the most recent Democratic appointees, Justice Ginsburg and Justice Breyer.
That’s obviously important for a wide range of issues on which the liberal position would trouble not just conservatives, but also libertarians and moderates: the individual right to keep and bear arms, the right of Asians and whites to equal treatment under the Constitution’s racial equality provisions and federal equal rights statutes, the constitutionality of even-handed school choice programs that include religious schools on equal terms with secular ones, the right of people and organizations to participate effectively in political campaigns, and more.
On one of these cases (Heller) I actually agree with Volokh; on the others, I’m less sympathetic. But the first thing I notice about these cases is that nothing would change if you substituted zombie William O. Douglas for one of the Court’s moderates. All four of the Court’s current moderate liberals dissented in Heller. It was Breyer who wrote the major dissent (joined by Souter as well as Stevens and Ginsburg) in Parents Involved, and Stevens who (correctly in my view) compared the Roberts/Volokh position that racial classifications used to promote integration are indistinguishable from racial classifications used to uphold a caste system to Anatole France’s mock observation that “The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Souter himself wrote the brilliant dissent in Zelman (again, joined by the other three more liberal justices) noting that the voucher program in question was anything but “even-handed” between religious and secular programs, given that its construction guaranteed that virtually all of the money had to go to parochial schools. Leaving aside the fact that ifthe goal is the “effective” participation in political campaigns the desirability of First Amendment absolutism on campaign finance is far from self-evident, again Souter and Breyer have consistently voted against the Court’s conservatives in these cases. So for every one of the areas Volokh mentions, whether Souter is replaced by another moderate or another Brennan will make no difference whatsoever.
The other thing you notice about the cases Volokh cites, of course, is that they’re all absolutely standard-issue Republican obsessions, with no particular libertarian content at all — Pat Buchanan would presumably agree with Volokh on all points. Conversely, criminal procedure cases are an area in which replacing a Souter or Breyer with a Douglas or Marhsall really would make a difference, and moreover would make a difference in a way that you’d think an actual libertarian would approve of. But Volokh has nothing to say about them.
Why, it’s enough to make me wonder in what sense Volokh is a “libertarian,” as opposed to an ordinary conservative, at all. (Or, as Henley said long ago, “[t]he further you get from standard Republican issues like guns and university speech codes, the more likely he is to arrive, with exquisite regret, at the conclusion that the State, particularly when helmed by George W. Bush, must have its way.”)