The Most Pessimistic Libertarian Judicial Opinion of the Year (So Far)

Hein Hettinga used to sell his milk for 20 cents less than his competitors. Congress changed all that. In 2006 it passed a new regulation on the milk trade, urged (with lobbying, of course) by the surprisingly powerful milk industry. Hettinga sued.

Via Jonathan Alter, I see that the D.C. Court of Appeals has rendered its verdict and Hettinga has lost again. But the really intriguing part of the decision is the concurrence by Janice Rogers Brown. Dahlia Lithwick has put the Brown “screed” in a larger context, but I just think it’s a fascinating political footnote. The judge, 62, was one of the George W. Bush nominees held up for years until the 2005 “Gang of 14” deal.

The judiciary justifies its reluctance to intervene by claiming incompetence—apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm—or deferring to the majoritarian imperative. But see The Federalist No. 78, at 467 (Alexander Hamilton)… The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good  and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).

Randy Barnett is better known as the libertarian legal scholar who crystalized the argument against “Obamacare.”

The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the Counter-Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004).  In an earlier century, H. L. Mencken offered a blunt assessment of that option:  “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic.  See id. at 248.  Rational basis review means property is at the mercy of the pillagers. 

I think only Brown’s age argues against her leading a short list of Romney SCOTUS nominees.