The Supreme Court Inches Towards Liberty

Sometimes when right and left compromise, the results make us freer

Two important Supreme Court decisions came down today. One was a clear victory for the left, the other for the right. Both moved the law in a more pro-liberty direction, making this a good day for freedom. Moreover, each decision was practically unanimous, with one of them having a single partial dissenter. The two cases being handed down on the same day provides an opportunity to review some themes about how power functions at the top levels of government, and how intraelite negotiations and collaboration can sometimes preserve liberty.

FDA v. Alliance for Hippocratic Medicine centered around the availability of mifepristone, a drug used to terminate pregnancies. A district court judge in Texas placed an injunction on its sale. Before getting to the merits of the case, the plaintiffs had to prove they had standing, which means that they were experiencing a harm due to the government’s actions. In this suit, the lead plaintiff was an anti-abortion organization. As the Court explained in its 9-0 decision:

Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others. Because plaintiffs do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA’s regulation of others. Plaintiffs advance several complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact. None of these theories suffices to establish Article III standing.

I’m pretty cynical about the degree to which judges can twist the law in their favored direction, but even I was shocked by the original ruling. The doctors argued they had standing because, among other things, theoretically they might have to deal with complications that result from the use of the drug, or it could raise insurance premiums, or that as pro-lifers they were “forced” to spend their resources looking into the issue and petitioning the government. On this last principle, this could mean that as someone who writes about politics, anytime the government did something I didn’t like, I could sue if I decided to start researching the issue at my own expense. Judge Kavanaugh writes, with understated humor, “an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.” For those interested in more, here’s a breakdown of the lawsuit from last year by a former clerk for Justice Scalia, who wrote a three-part series covering the absurdity of the case and how it threatened the rule of law. And see this thread on the totalitarian implications of the plaintiffs’ position.

The second decision, Starbucks Corp v. McKinney, revolved around an employment dispute. In a Memphis Starbucks store, certain employees were seeking to organize a union. Federal law prohibits firing workers for this kind of activity, but these employees invited a local news station into the store after hours to promote their effort. As this was against company policy, they lost their jobs. The National Labor Relations Board (NLRB) then went to court and received an injunction ordering that they be rehired.

The question before the Supreme Court was technical, namely, what standard to use before a court grants an injunction in this kind of labor dispute. The justices sided with Starbucks over the NLRB, holding that the traditional rule for granting injunctions applied, which says that the plaintiff seeking one must show “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Union activists and the NLRB wanted a lower standard that involved a two-part test, where a court decides if “there is reasonable cause to believe that unfair labor practices have occurred,” and whether an injunction is “just and proper.” The Supreme Court ruled that there was no statutory reason for courts to depart from the traditional standard for granting relief. All this sounds very arcane, but the upshot is that Starbucks Corp makes it in effect harder for the federal government to force private businesses to keep troublemaking employees around, as explained in the NYT coverage here. Eight justices signed on to the majority decision, with Katanji Brown Jackson concurring in part and dissenting in part, arguing that more deference be given to the NLRB.

I think it is significant that these two decisions came out on the same day. The legitimacy of the Supreme Court has taken a battering in recent years, as shown in public opinion data.

Unlike many political trends, this one seems to be connected to a singular event, which was the Dobbs decision. This is why Justice Roberts wisely tried to steer the Court towards a more moderate direction in that case. Even when they’re in the ideological minority, the status of judges depends on the institution that they are a part of, so both liberal and conservative justices don’t want to see the Supreme Court completely discredited among any significant part of the population. This means that as they were considering both cases at the same time, they had reason to try and find consensus, and not come across as too partisan in either direction. Therefore a 9-0 decision favoring the left and an 8-1 decision with a partial dissent favoring the right was a kind of ideal outcome. Of course, this doesn’t mean that the conservative justices won’t simply impose their will when they feel strongly about something, as has happened in Dobbs and Students for Fair Admissions. But in addition to ideology and what justices honestly believe about what the law says, the Supreme Court also naturally takes political considerations regarding its own image into account.

All of this is interesting for what it tells us about how the Supreme Court works, and also American elites more generally. I’ve previously criticized the view that sees politics revolving around a zero-sum competition between “right” and “left.” In the real world, both sides have some power, and how we are governed is often the result of compromises and understandings that emerge between them. I would argue that this process, at least some of the time, has pushed society towards liberty. Today, we saw a victory for pro-liberty rightists who want weaker labor protections and pro-liberty leftists who believe that government should not regulate pregnancy. At the same time, right-wing theocrats and left-wing supporters of unions lost.

If your entire model of the world is right versus left, today looks like a draw. Or the two decisions might be confusing, since you’ve been told that it is always the case that one side must win and the other lose, therefore leading you to conclude that it’s strange to see the Supreme Court virtually united on two cases pushing in opposite ideological directions.

There’s no reason to believe that elite bargaining always leads to desirable outcomes. There are populists who want to take economic ideas from the left and combine them with theocratic and nationalist positions of the right, and such a ruling class exists in places like Iran and much of Latin America. One of the good things about American elites at this particular point in time, however, is that they tend to be relatively libertarian from a historical perspective. This might be due to American culture having its roots in Protestantism, and it’s probably not a coincidence that the greatest enemies of liberty on the right are Catholics. When looking to compromise, however, American elites will more often than not throw the more anti-liberty parts of their coalition overboard. Conservative leaders always deliver tax cuts, but, at least until recently, have been squishy on abortion, gay rights, and immigration. Leftists in power are absolutists on abortion and LGBT, but usually believe in some of the basic laws of economics. I think both sides are more anti-liberty than they were a decade ago, and this is due to the growing influence of populism within each party. The judiciary, as the least democratic branch of government, tends to be most immune from these trends, as demonstrated by Starbucks Corp and Alliance for Hippocratic Medicine.

I see the libertarian movement as necessarily opportunistic. It should not throw in completely with one side or the other, but simply look for points where it can provide financial, institutional, and intellectual support to pro-freedom factions within the right and left. This is sort of what the Cato Institute does, and it tends to be effective. Its research will be cited by Democratic proponents of a more open immigration system, and also fiscal conservatives who are concerned about out-of-control entitlement spending.

No law of history says that competition and negotiations among elites will always lead to more liberty instead of less. But today the Supreme Court helped make America a slightly freer country. An important question to consider is what we can do to facilitate the dynamics that will create more days like this in the future.