Overruled (14 page)

In Bork's view, the Court's power plainly should have been withheld in
Griswold.
“Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups,”
58
he wrote, echoing Oliver Wendell Holmes's observation that all laws are “necessarily a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else.”
59
But unless the Constitution provides clear and specific guidance on how to settle each particular dispute, Bork went on, “courts must accept any value choice the legislature makes.” To hold otherwise would be to place the subjective views of the judge on a higher plane than the wishes of the people as expressed via their elected representatives. “The issue of the community's moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question,” Bork maintained. “The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.”
60

Taking another page from the Progressive playbook, Bork faulted the Supreme Court for reading the tea leaves of the Due Process Clause in the hopes of divining whether or not a particular species of liberty deserves special protection from the edicts of the majority. What makes “sexual gratification more worthy than economic gratification?” he asked. Absent a clear answer drawn from an unequivocal constitutional provision, “the only course for a principled Court is to let the majority have its way.”
61

Bork also connected the dots between
Lochner
and
Griswold,
arguing that both cases relied on the same flawed reading of the Due Process Clause as a protector of substantive liberty against the will of the majority. “Substantive due process, revived by the
Griswold
case,
is and always has been an improper doctrine,” Bork declared. “This means that
Griswold
's antecedents were also wrongly decided,” he went on, pointing not only to
Lochner,
but also to
Meyer,
where the Court voided a state ban on teaching foreign languages to children, and
Pierce,
where the Court overturned a state law prohibiting private schools. “With some of these cases I am in political agreement,” Bork added, alluding perhaps to his earlier interest in libertarianism, “but there is no justification for the Court's methods.” Quoting directly from the majority opinion in
Lochner,
in a passage in which Justice Peckham had asked, “Are we all . . . at the mercy of legislative majorities?” Bork was quick to supply a response: “The correct answer, where the Constitution does not speak, must be ‘yes.'”
62

“An Extreme Individualistic Philosophy”

While
Griswold
remains controversial, that dispute is nothing compared to the furor still surrounding the Supreme Court's 1973 opinion in
Roe v. Wade.
In
Roe,
a seven-to-two majority extended the right of privacy first recognized in
Griswold
to cover a woman's decision to terminate her pregnancy. Four decades later, the battle over that decision continues to rage, with no end in sight.

The case originated in Texas, where a state law criminalized all abortions except in those instances where the life of the mother was at risk. In his opinion for the Court, Justice Harry Blackmun struck down that prohibition and replaced it with a tripartite system for determining the permissible scope of state regulation. In effect,
Roe
held that a woman may have an abortion for any reason during the first three months of her pregnancy. During the next three months, up to the point of fetal “viability,” the state legislature may impose some additional regulations so long as they “are reasonably related to maternal health.”
63
Finally, during the final trimester of pregnancy, the state
may regulate “and even proscribe” abortions, except when “the preservation of the life or health of the mother”
64
is at stake. “This right of privacy,” Blackmun wrote, “whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it to be, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”
65

Writing in dissent, Justice William Rehnquist, who would later serve as chief justice, chastised the majority for distorting the Constitution in order to advance its liberal agenda. “A transaction resulting in an operation such as this is not ‘private' in the ordinary usage of that word,” Rehnquist observed. The real question was whether or not “the claim of a person to be free from unwanted state regulation of consensual transactions”
66
counts as a form of protected liberty under the Fourteenth Amendment. If it does, Rehnquist continued, then the majority's holding is “closely attuned to the majority opinion of Mr. Justice Peckham” in the
Lochner
case, where a substantive interpretation of the Due Process Clause was similarly deployed on behalf of an unenumerated individual right. The Court's approach in
Roe,
he concluded, “partakes more of judicial legislation”
67
than it does of principled judicial review.

Robert Bork agreed wholeheartedly.
Roe,
he declared, was “the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century,” and therefore “should be overturned”
68
as soon as possible. At least in
Griswold,
“spurious as it was,” he wrote, the Supreme Court “seemed to confine ‘the right of privacy' to areas of life that all Americans would agree should remain private,” such as the marital bedroom.
Roe
made no such effort to cabin the impact of its reasoning. Operating under the spell of “an extreme individualistic philosophy,” Bork wrote, the Supreme Court was now asserting “that
society, acting through government, had very little interest in such matters.”
69
As Bork saw it, society, acting through government, had every interest in such matters of morality, and if any member of the public happened to disagree with the current crop of legislation dealing with sexual and reproductive matters, the only recourse was to vote his or her particular moral preferences into law at the next election. As for the judiciary, its only role was to interpret the laws made by the majority, not to make any new laws of its own devising. “Judges who vigorously deny elected representatives the right to base law on morality, simultaneously claim for themselves the right to create constitutional law on the basis of morality, their morality,”
70
he observed.

Justice Oliver Wendell Holmes could not have said it better himself.

Four

Libertarians vs. Conservatives

It was the morning of July 25, 2005, and the
Washington Post
had just detonated a small bombshell. “Supreme Court nominee John G. Roberts Jr. has repeatedly said he has no memory of belonging to the Federalist Society,” announced reporter Charles Lane, “but his name appears in the influential, conservative legal organization's 1997–1998 leadership directory.”
1
Five days earlier, President George W. Bush had nominated Roberts to replace retiring Justice Sandra Day O'Connor, who was stepping down to help care for her husband, John, who was suffering from Alzheimer's disease. Now, thanks to the
Post,
Roberts was about to face his first hurdle on the path to eventual confirmation by the U.S. Senate.

Founded in 1982 by a handful of law students at Yale University and the University of Chicago, the Federalist Society for Law and Public Policy Studies had quickly grown to become the most influential conservative legal organization in American history.
2
Among the ranks of its current or former members are federal judges, leading
law professors, and high-ranking government officials, including close advisers to some of the most powerful figures in the Republican Party. Founder Steven Calabresi, for instance, who started the original Yale student chapter, later went on to serve as a senior Justice Department official in the Ronald Reagan administration and as a speechwriter for Vice President Dan Quayle. Lee Liberman Otis, who co-founded the original Chicago student chapter, later served as associate counsel to President George H. W. Bush and as an associate deputy attorney general in the Justice Department of George W. Bush. But perhaps the most prominent and influential alumnus of them all is Supreme Court Justice Antonin Scalia, a former faculty adviser at the University of Chicago and still a frequent speaker at Federalist Society events.

That reputation as a bastion of hardcore conservatives was why the
Washington Post
found Roberts's possible membership to be a newsworthy item. Unlike previous Supreme Court nominees such as Robert Bork, who had written widely during his years as a law professor on a range of controversial topics, and had therefore provided plenty of rich material for journalists and critics to mine during his 1987 confirmation fight, Roberts's paper trail was relatively thin by comparison. Indeed, the heaviest baggage Roberts was carrying around
3
consisted of a number of memos written for his old bosses in the Reagan Justice Department spelling out various conservative legal positions. But possible membership in the Federalist Society? That sparked the curiosity of the Washington press corps, who hoped it might help turn up a few clues to Roberts's personal views about the law. Roberts's liberal detractors, meanwhile, hoped his association with the high-profile conservative outfit just might produce the smoking gun needed to thwart his nomination.

“Just because someone belongs to the Federalist Society does not inherently disqualify them,” declared Ralph Neas, president of the liberal advocacy group People for the American Way. “But it certainly
raises a lot of questions about whether that individual adheres to the judicial philosophy of Clarence Thomas and Antonin Scalia.”
4
As Neas and his allies on the left saw it, Thomas and Scalia had been disasters on the bench. Adding another right-wing justice in their vein would compound the catastrophe and should therefore be opposed by any political means necessary. Federalist Society members, meanwhile, fought back against what they saw as a ridiculous witch hunt. “There's no need to distance Roberts from the Federalist Society, for there's nothing disreputable about membership in it,” announced one society member in an editorial written for the
New York Post.
“What are we talking about here: the Communist Party? the Ku Klux Klan? No, we're talking about an organization of conservative and libertarian lawyers and legal scholars, begun nearly a quarter of a century ago in response to the overwhelmingly leftist tilt of the nation's law schools, to try to bring some balance and a different perspective to that insular and highly politicized world.”
5

In the end, Roberts survived the scandal. He said he had no memory of ever officially joining the Federalist Society, the White House said it believed him, and the press moved on to fresher controversies once his confirmation hearings got going in the Senate a few months later. What makes the episode worth remembering today is not what it said about Roberts, which was basically nothing, but what it revealed about the fearsome notoriety of both the Federalist Society and the larger conservative legal movement the society had come to represent. Thirty years earlier, in the wake of landmark liberal rulings such as
Roe v. Wade,
the idea of an impending conservative takeover of the Supreme Court would have been waved away with a few polite chuckles. But by 2005, thanks in large part to the intellectual spadework performed by Federalist Society members and fellow travelers, nobody was laughing at the idea of a conservative legal renaissance anymore.

The Big Tent

The conservative legal movement occupies one of the biggest tents in modern American politics, with a membership ranging from religious traditionalists to gay-friendly libertarians who really should not be called conservatives at all. Take a glance at a recent federal court docket and you'll see the movement's fingerprints on all sorts of cases, from legal attacks on the regulatory power of the Environmental Protection Agency to efforts to abolish affirmative action to the 2012 lawsuit that nearly toppled Barack Obama's health care law. The movement's origins lie in the political backlash against the Supreme Court's perceived liberal activism during the 1960s and '70s, when it issued landmark decisions on issues ranging from birth control and criminal justice to school busing, voting, and welfare. In the eyes of many conservatives, the Court was not just fulfilling the liberal wish list at that time; it was engaged in the reckless act of inventing new rights previously unheard of in constitutional law, such as the right to an abortion first recognized in
Roe v. Wade.
In the hopes of undoing some of that perceived damage, many of those same conservatives began plotting a legal agenda of their own.

Several organizations soon formed to carry out that mission, including the Pacific Legal Foundation (founded in 1973), the Landmark Legal Foundation (founded in 1977), and the Washington Legal Foundation (also founded in 1977). They filed
amicus
(friend-of-the-court) briefs, challenged various government regulations, and pursued conservative and/or libertarian policy goals—both in and out of court.

A significant early development came with the formation of the Federalist Society in 1982. It was a modest start, to be sure. The society's first public event was a small conference for law students and professors devoted to the subject of federalism, featuring several prominent right-of-center legal scholars, including Yale's Robert Bork, who had been involved with the society's Yale chapter from its inception.
“Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society,” declared that conference's statement of purpose, drafted by society founders Steven Calabresi, Lee Liberman (now Lee Liberman Otis), and David McIntosh. “While some members of the legal community have dissented from these views, no comprehensive conservative critique or agenda has been formulated in this field. This conference will furnish an occasion for such a response to be articulated.”
6

More than three decades later, the Federalist Society still follows that basic blueprint for conservative advocacy. “We're not a position-taking organization,” explained society president Eugene Meyer in a 2010 interview. He should know. He has occupied that leadership role since 1983. “We don't lay down the law from the central office.”
7
In fact, the Federalist Society takes no official stand on any public-policy issues, including Supreme Court nominations, which it refuses to officially endorse. Instead, the organization seeks to foster an intellectual environment where conservative legal ideas may develop and thrive, essentially creating a far-flung hub where right-of-center law students, lawyers, academics, and activists can gather to share their views and experiences. In large part, the society simply operates as a classic network, connecting the like-minded through student and lawyer chapters that are now present on the campus of every accredited law school in the United States and in more than sixty cities, respectively.

But at the same time, the Federalist Society is no mere social club. From the outset, the society has placed a high premium on intellectual exchange and the nurturing of conservative legal talent, with its various chapters sponsoring numerous debates, panel discussions, and conferences each year, while the national office hosts a massive annual gathering each fall in Washington, D.C., that is itself replete with panels and debates and typically features a conservative federal judge
or Supreme Court justice delivering a keynote speech. And while the focus at these events is always on legal topics that matter first and foremost to conservatives, the Federalist Society consistently attracts top-notch participants from across the political spectrum, including many of the academy's most distinguished liberal scholars. And because society membership is as wide ranging as the conservative movement in general, even the most conservative Federalist Society member has been exposed to libertarian legal ideas at one point or another.

Another key milestone in the legal right's modern resurgence came when President Ronald Reagan appointed conservative lawyer and former law professor Edwin Meese III as attorney general in 1985. An aggressive critic of the liberal legal establishment, Meese made judicial restraint, which had been a conservative rallying cry since the advent of the liberal Warren Court, into a central component of Reagan's domestic agenda. “What, then, should a constitutional jurisprudence actually be?” Meese asked in a 1985 speech to the American Bar Association. It should be one rooted in the original intentions of the founders, he said, and it should be one where judges exhibit “a deeply rooted commitment to the idea of democracy.”
8
Writing in the
New York Law School Law Review
a decade later, Meese said this approach was meant to undo “more than a quarter century of judicial activism, in which the text of the Constitution, precedent, and certainty were cast aside in favor of wild flings of judicial fancy.”
9

But perhaps the most important factor of all was the intellectual path blazed by Robert Bork. He was there at the outset, mounting the new right's first authoritative counterattack against the Supreme Court's burgeoning jurisprudence in the realms of privacy and abortion, crafting legal arguments that still remain in use today by conservative lawyers and judges. A decade later, Bork, by then an established and respected legal scholar, took an active role in both the fledgling Federalist Society, where his numerous speeches and debates would
influence multiple generations of young lawyers (not to mention future judges and politicians), and in the first wave of what conservatives would dub the “Reagan Revolution,” formally joining the ranks in 1982 when the president appointed him to the U.S. Court of Appeals for the District of Columbia Circuit, where Bork was finally able to put his own stamp on the law. His failed 1987 nomination to the Supreme Court, meanwhile, galvanized the American right and transformed Bork into something of a martyr figure among conservative legal activists. In short, it's no overstatement to describe him as the conservative legal movement's most significant figure.

Bork's next contribution to the cause came in 1990, when he gave the movement its first great manifesto. Part legal history, part constitutional treatise, and part personal memoir,
The Tempting of America
was a bestseller upon publication and has never gone out of print. It's a fascinating book, weaving Bork's unsuccessful Supreme Court nomination into his larger theme of what he calls the politicization of the law, or the growing desire by many Americans to use the courts to achieve results that should be properly reached via the legislative process. “A judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result,” Bork wrote. “Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy.”
10

At the heart of the problem, as Bork saw it, was the misguided effort to place individual liberty on a consistently higher plane than majority rule. In Bork's view, that approach was totally at odds with the basic American design. The “first principle” of our system is not individualism, Bork argued, it is majoritarianism, a bedrock point that no judge should ever lose sight of. “In wide areas of life,” Bork maintained, “majorities are entitled to rule, if they wish, simply because they are majorities.”
11

That approach became widely accepted on the right, as evinced by the conservative response to issues ranging from the regulation of abortion to the scope of the president's executive authority. In such cases, the default conservative position is for the judiciary to defer to the choices made by the elected branches of government.

But at the same time that Bork was setting the intellectual pace on the right, a new breed of libertarian legal thinkers was beginning to craft an ambitious agenda of their own, one that would soon put them on a collision course with the majoritarian jurisprudence championed by Bork. Why the impending conflict? The answer is simple. As the libertarians saw it, Bork was the one making the fundamental error. Individual liberty comes first, the libertarians declared, not majority rule.