In a Washington Post article about a potential candidate for the Supreme Court (“Supreme Court Prospect Has Unlikely Ally:Friendship With Thomas May Complicate Chances for Left-Leaning Georgia Judge“; registration may be required), the reporter informs us that a mere personal friendship between two judges may disqualify one from consideration for the Supreme Court. Why? Because the court is not seen as dispensing justice, but as “representing interests.”
But if the choice does turn out to be Sears, the nation’s first black president would be nominating someone whose closest friend on the court is the very person civil rights activists have accused of failing to represent African Americans’ interests.
That neatly tells us what is wrong with the approach to jurisprudence pioneered by theorists of positive rights, who have effectively replaced rights with interests, and even state that rights simply are interests. Judges, accordingly, are supposed to decide cases as representatives of interests, not on the grounds of justice. (I explore the issue in some depth in my essay “Saving Rights Theory from Its Friends” in my very soon-to-be-released book Realizing Freedom: Libertarian Theory, History, and Practice.)