An Unequal Liberty

The conservative justices have a selective and destructive notion of “liberty.” In overruling Roe v. Wade last term, the Supreme Court found that the “liberty” explicitly protected by the Fourteenth Amendment’s due-process clause does not include freedom against forced childbearing. In contrast, in cases that concern the Constitution’s structural provisions creating and empowering the institutions of the federal government—provisions that do not mention liberty—the Court has wrapped itself in liberty to explain why it has acted to protect the liberty of a powerful few. Yet the liberty of the vulnerable many, which grows rather than recedes with the kinds of federal protections the Court has rejected, goes unremarked.

In the Supreme Court’s current term, it will hear about the powers and structure of the federal government in which these competing perspectives on liberty become apparent. In , the justices are being asked to drastically cut back on the EPA’s authority to control water pollution under the Clean Water Act. In , the underlying legal claims seek to end the political independence of administrative-law judges and to make the very notion of an independent federal agency, whose leading officials are protected from