Overruled
Page 11
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 around3 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.
“A Stance of Across-the-Board Libertarianism”
One of the first libertarian challenges to the Borkean view came from University of San Diego law professor Bernard Siegan, whose powerful case for libertarian judicial action reverberated throughout the conservative legal world. Siegan became so influential, in fact, that President Reagan even tried to make him a judge on the U.S. Court of Appeals for the Ninth Circuit, although the Senate ultimately rejected Siegan’s 1987 nomination—which came on the heels of the Bork debacle—on a party-line vote.
Born in Chicago in 1924, Siegan served in World War II and then went on to complete a law degree at the University of Chicago in 1949. He spent the next two decades practicing real estate law in the greater Chicago area, where he found himself face-to-face with what he saw as a fundamentally unworkable regulatory and bureaucratic regime. He made the leap to the academic world with the 1972 publication of Land Use without Zoning, a book-length argument in favor of deregulation and laissez-faire, using the example of Houston, Texas—a major American city that had developed and thrived despite having no zoning laws on the books—to support his case. Based on the strength of his scholarship, Siegan joined the faculty of the University of San Diego School of Law in 1973, where he would remain for the next thirty years.
At San Diego, Siegan completed work on the volume that would make his name in libertarian and conservative circles. Published in 1980 by the University of Chicago Press, Economic Liberties and the Constitution presented a sweeping legal and historical argument: The Supreme Court was wrong to abandon liberty of contract and in fact subverted the Constitution in the fateful year of 1937. “Justices are not intended to be government agents, furthering the interests of the executive or legislative branches in their disputes with citizens,” he observed. “A judicial system more concerned to protect the power of the government than the freedom of the individual has lost its mission under the Constitution.”12 Yet thanks to the bifurcated system put in place by Footnote Four of the Carolene Products decision, Siegan maintained, the courts now performed exactly that sort of pro-government role when it came to those cases dealing with allegedly “non-fundamental” rights, such as the economic freedom to work in a common occupation. According to Footnote Four, judicial deference should be the rule in all cases dealing with economic regulation. By contrast, if the dispute was over voting rights, the treatment of racial minorities, or the Bill of Rights, Footnote Four openly invited the courts to practice aggressive judging and put the government’s actions under the microscope.
In Siegan’s view, it was ludicrous for the Supreme Court to enforce this fictitious distinction
. At the same moment the Court was busy recognizing and protecting new rights under the Fourteenth Amendment, he complained, “economic liberties, which significantly touch almost every person’s life, have not been accorded appreciable protection.”13 His solution was for the courts to treat all rights equally and for judges to meaningfully scrutinize the government’s actions in every case that came before the bench, not just in those areas where the right at issue had been arbitrarily labeled as fundamental. To accomplish this end, Siegan proposed a three-part test for judges to administer when seeking to determine the constitutionality of economic and social legislation. First, the government must shoulder the burden of proof and demonstrate “that the legislation serves important governmental objectives”; second, there must be a close fit between the regulatory means selected and the governmental ends those means are supposed to accomplish; and third, the government must show “that a similar result cannot be achieved by a less drastic means.”14 In other words, his approach “would require the same judicial priority for economic as for other rights.”15
It was a brazen challenge to the reigning liberal orthodoxy. But it also flew in the face of the judicial restraint championed by conservatives such as Bork. Remember that Bork agreed with the Progressives and saw the Supreme Court’s 1905 ruling in favor of economic liberty in Lochner v. New York, in which the Court struck down a state law preventing bakery employees from working more than sixty hours per week, as a regrettable example of conservative judicial activism. Siegan took the opposite view, praising the Lochner majority for refusing to defer to New York’s “speculative conclusions and paternalism.”16 Whereas Bork took his inspiration from the deferential philosophy of Justice Oliver Wendell Holmes, Siegan followed the path of Justice Stephen Field.