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THE FEDERALIST
WAR OF IDEAS


For a long time, during the middle of the twentieth century, it wasn't even clear what it meant to be a judicial conservative. Then, with great suddenness, during the presidency of Ronald Reagan, judges and lawyers on the right found a voice and an agenda. Their goals reflected and reinforced the political goals of the conservative wing of the Republican Party.

Earl Warren, who served as chief justice of the United States from 1953 to 1969, exerted a powerful and lasting influence over American law. The former California governor, who was appointed by Dwight D. Eisenhower, put the fight against state-sponsored racism at the heart of his agenda. Starting in 1954, with Brown v. Board of Education, which outlawed segregation in public education, the justices began more than a dozen years of sustained, and usually unanimous, pressure against the forces of official segregation. Within the legal profession in particular, Warren's record on civil rights gave him tremendous moral authority. Warren and his colleagues, especially William J. Brennan Jr., his close friend and strategist, used that capital to push the law in more liberal directions in countless other areas as well. On freedom of speech, on the rights of criminal suspects, on the emerging field of privacy, the Warren Court transformed American law.

To be sure, Warren faced opposition, but many of his Court's decisions quickly worked their way into the permanent substructure of American law. New York Times Co. v. Sullivan, which protected newspapers that published controversial speech; Miranda v. Arizona, which established new rules for interrogating criminal suspects; even Griswold v. Connecticut, which announced a right of married people to buy birth control, under the broader heading of privacy--all these cases, along with the Warren Court's many pronouncements on race, became unassailable precedents.

Richard M. Nixon won the presidency in part by promising to rein in the liberalism of the Court, but even though he had the good fortune to name four justices in three years, the law itself wound up little changed. Under Warren E. Burger, whom Nixon named to succeed Warren, the Court in some respects became more liberal than ever. It was under Burger that the court approved the use of school busing, expanded free speech well beyond Sullivan, forced Nixon himself to turn over the Watergate tapes, and even, for a time, ended all executions in the United States. Roe v. Wade, the abortion rights decision that still defines judicial liberalism, passed by a 7-2 vote in 1973, with three of the four Nixon nominees (Burger, Lewis F. Powell, and Harry A. Blackmun) in the majority. Only Rehnquist, joined by Byron R. White, appointed by John F. Kennedy, dissented.

Through all these years--from the 1950s through the 1970s--the conservatives on the Court like White and Potter Stewart did not differ greatly from their liberal colleagues. The conservatives were less willing to second-guess the work of police officers and to reverse criminal convictions; they were more willing to limit remedies for past racial discrimination; they deferred somewhat more to elected officials about how to organize and run the government. But on the big legal questions, the war was over, and the liberals had won. And their victories went  beyond the judgments of the Supreme Court. The Warren Court transformed virtually the entire legal culture, especially law schools.

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It was not surprising, then, that on the day after Ronald Reagan defeated Jimmy Carter in 1980, Yale Law School went into mourning. On that day, Steven...

 

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"The Nine not only provides a vivid narrative history of the Court's recent history, but also gives the reader an intimate look at individual justices, showing how personality, judicial philosophy and personal alliances can inform decisions that have huge consequences for the entire country. . . . Driven by the author's assured narrative voice, The Nine is as informative as it is fascinating, as insightful as it is readable."

 

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The Nine by Jeffrey Toobin
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