All the President's Crackpots

Breaking News
tags: libertarianism, law and economics, Federalist Society, Conservative Legal Movement

In the policy battle over the response to the coronavirus pandemic, much depends on who has Donald Trump’s ear. All presidents receive conflicting advice, but Trump in particular is susceptible to the last person who talks to him. During his press conference on Sunday, Trump seemed to accept the position of medical experts like Dr. Anthony Fauci, who insist that the pandemic demands a no-holds-barred response. But Trump also said, “We had a lot of people, people were saying maybe we should not do anything, just ride it. Ride it like a cowboy. Ride that sucker right through.” Trump himself at least on occasion has echoed this line of thought, with his suggestions that social distancing policies should be ended as soon as possible, perhaps even in time to allow the churches to be full on Easter.

The idea that the medical establishment is overreacting to the pandemic continues to be strong in some segments of the political right, especially among libertarians. As The Washington Post reported on March 23, “Conservatives close to Trump and numerous administration officials have been circulating an article by Richard A. Epstein of the Hoover Institution, titled ‘Coronavirus Perspective,’ that plays down the extent of the spread and the threat.”

Trump wavers back and forth on coronavirus policy because he sometimes listens to medical experts and sometimes to aides who are offering distillations of Epstein’s argument.

It’s strange that this article had such an impact, because Richard A. Epstein is not a medical expert but a legal scholar. He’s one of the most influential members of the law and economics movement that has worked since the 1950s to persuade judges to apply libertarian economic theories about cost and benefit in rendering legal judgements. Thanks to the institutional networks created by the Federalist Society, the law and economics movement has played a major role in pushing American jurisprudence to the right.