The Libertarian party, in term of Judicial philosophy, can be described as “Pro-Lochner and Pro-Griswold.” For people who are not U.S. Supreme Court nerds, these two court cases are either admired or hated based upon your view of the Constitution.

The U.S. Supreme Court in Lochner v. New York held the U.S. Constitution has a “right to contract.” As such, State governments lack the ability to regulate contracts between employees and employers. The extremely controversial opinion was disfavored by O.W. Holmes, who wrote, “Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory.” Liberals (now Libertarians) hailed the decision, Conservatives and Progressives eschewed it. While the FDR Supreme Court later repealed Lochner, the Cato Institute clearly provides rehabilitating Lochner is a libertarian priority.

Additionally, Griswold v. Connecticut is the other purely libertarian case. Most people have never heard of Griswold, which declared prohibitions on contraceptives purchased by adults as unconstitutional, but it is at the heart of every Conservative’s most critical Supreme Court question. The concept “Right of Privacy” truly began with Griswold, and it is the central foundation for Roe v. Wade and Casey v. Planned Parenthood. The majority opinion rested on the laughable concept of “penumbras” of rights. Essentially, every Amendment and every Article casts a shadow of associated rights. According to the majority in Griswold, these shadows produced the right to privacy. The majority opinion was so cryptic and vague, concurring opinions attempt to cast the opinion on more firm foundations, but the majority opinion served its ultimate purpose. Rights were long shadows during the subsequent decades. Ultimately, it was Rhenquist and Scalia who, together, ended this era of Constitutional shadows.

Bill Weld and Gary Johnson

Bill Weld and Gary Johnson, Libertarian Candidates
Photo Credit: Wikimedia Commons

What does this have to do with Bill Weld, the Libertarian Party’s candidate for Vice President? Last night on CNN, Bill Weld (who Presidential Candidate Gary Johnson openly said he will defer to regarding U.S. Supreme Court nominations or Department of Justice issues) answered a question about his legal philosophy for picking U.S. Supreme Court nominations (after Johnson provided the vague “follow the Constitution” answer). Governor Weld provided a “total” person review, but then provided examples of people who would pick. The former U.S. Supreme Court justice Gov. Weld picked was Hugo Black.

Hugo Black, an FDR nominee and former Senator of Alabama, was a Lochner era progressive selected because FDR knew he would support the New Deal legislation (many of which he pushed through the Senate himself). Hugo Black is famous for many dissents: importantly Griswold. In his dissent, Black described the case is the modern Lochner. He said that while he believed that there should be a right to privacy, he did not believe the U.S. Supreme Court should create that right.

As one could imagine, the Libertarian Party’s decision to have an Anti-Lochner, Anti-Griswold politician decide who their Supreme Court nominees would be made many Libertarians (including Reason Magazine) extremely upset. Libertarians desire another Justice Thomas, but they will find themselves with another Justice Scalia (a small distinction for the average conservative, but for the libertarians, it is night and day).

One of the greatest arguments against the Johnson/Weld ticket from a conservative perspective is the quality of a pro-Choice, pro-Lochner, pro-Griswold Supreme Court. Bill Weld has stated, in the clearest terms possible, that he is to the right of the GOP regarding Supreme Court nominees. He doesn’t want to merely repeal Roe. That’s child’s play. Governor Weld wants to repeals Griswold.