The Conservatives and The Court

Earl Warren’s retirement in June 1969 ended his run as Chief Justice of the most progressive Supreme Court in American history. Richard Nixon appointed Warren Burger to replace Warren, and Republican presidents selected the next five Justices over the seventeen years that Burger presided as Chief Justice. And yet the Burger Court, while tacking a bit to the right, continued to embrace activist interpretive method-ologies and to issue progressive decisions. The most famous example, but a typical one, was its decision in Roe v. Wade in 1973. There the Court discerned in the Fourteenth Amendment’s due process clause a “right to privacy” — a right that appears nowhere in that clause — that gave a pregnant woman the prerogative to abort a fetus until viability. The opinion was written by Harry Blackmun, a Nixon appointee, and joined by Burger and another Nixon appointee, Lewis Powell. In 1983 the title of a book by Vincent Blasi, a professor at Columbia Law School, summed up the state of affairs at the time: The Burger Court: The Counter-Revolution That Wasn’t.  When I entered Yale Law School in the fall of 1986, the conservative legal movement born in reaction to the Warren and Burger Courts’ makeover of American life was in its infancy. In mid-September, the Senate confirmed William Rehnquist, a hard-conservative voice on the Court since 1972, to replace Burger as Chief Justice. That same day it voted 98-0 for Antonin Scalia to replace Rehnquist as an Associate Justice. Scalia was little known outside conservative circles, but he was famous in them for his attacks on jurists who departed from the text of statutes and the Constitution when interpreting them. The Federalist Society, the now-dominant conservative legal organization, had been founded a few years earlier but was still a fledgling force. Conservative ideas

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