Meet the Justice Who Could Bring Liberty Back to the SCOTUS

SCOTUS

by Josh Guckert

One of the most immediate and pressing issues facing President-elect Trump is who he will choose to fill the vacant SCOTUS seat left by Antonin Scalia. Trump has released multiple different lists of possible candidates. However, one stands above the rest: Texas Supreme Court Justice Don Willett.

In May, when Trump released a list of 11 possible choices, he included Willett. Based on LexPredict‘s “Fantasy SCOTUS” balloting, Willett is predicted to be the fourth-most likely choice for the Court.

Willett has made a career from being an ardent defender of liberty on the bench as well as a charismatic figure off it. He was named a “Tweeter Laureate” for his social media activity, and constantly posts clever and informative tweets on his @JusticeWillett account.

He was appointed to the Texas Supreme Court by Governor Rick Perry in 2005 before winning election in 2006 and 2012. He graduated from Baylor University in 1988 with a triple-major BBA in economics, finance, and public administration before getting his law degree and master’s degree in political science at Duke in 1992.

A principled jurist, in 2013, he spoke against electing judges, in spite of the fact that he is an elected judge himself. He is only 50 years old, meaning that if selected, he could have close to three decades on the Supreme Court. His most notable opinion came in 2015 in Patel v. Texas Dept. of Licensing when he rejected the “Lochner bogeyman” created by many judges over the last 100 years. In the Patel case, which was referred to by Reason as “the most libertarian legal opinion ever written,” Willett and the Texas Supreme Court struck down a state licensing law which required eyebrow threaders to complete 750 hours of cosmetology training.

For some context, Lochner v. New York was a 1905 Supreme Court discussion which asserted that there exists a presumption of liberty under the Fourteenth Amendment when analyzing laws. In that case, regulators had created laws which limited how many hours bakers could work in a shift. The Court ruled that the law had no legitimate reasoning other than protectionist ends and therefore infringed upon the freedom to contract. The next thirty years constituted the “Lochner era,” wherein the Court regularly struck down economic regulations. It came to an end in 1937 when the Court began upholding New Deal laws.

Since then, both conservative and liberal justices have pointed to Lochner as a peril of “judicial interventionism” wherein the Court gets involved and oversteps the legislatures. Chief Justice John Roberts bashed Lochner in his dissent to the SCOTUS decision legalizing same-sex marriage, stating that the two opinions were dubiously similar.

Very few legal scholars today defend Lochner, though it remains one of the most libertarian opinions in Supreme Court history. Rand Paul cites to the opinion regularly as a positive example of “judicial activism,” and even included a discussion of the case in his filibuster of John Brennan.

Justice Willett would be just the cure for a Supreme Court which has lost its way for many years. His brand of judicial engagement (a term and ideology promoted by Georgetown Law Professor Randy Barnett) would reassert that the powers of government are limited and the rights of the people are unlimited; not the other way around.

Watch Rand Paul Explain the Lochner case below:

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