Liberties There's nothing Artificial about our Intelligence

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 were not taken seriously in law schools or the legal culture at the time. Robert Bork, who had left Yale five years earlier, observed that his colleagues found his conservative text-based approach to constitutional interpretation “so passé that it would be intellectually stultifying to debate it.”  After Reagan nominated Scalia, Republican presidents chose seven of the next eleven Justices on the Court that is now headed by a George W. Bush nominee, Chief Justice John Roberts. Three of those Justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, were chosen by Donald Trump. And yet despite the fact that Republican presidents have appointed fifteen of nineteen Justices since Warren, and despite undoubted successes, many conservatives are still waiting for the counterrevolution. Roe has not been overruled. The Court has recently recognized new constitutional protections for gay rights, including a right to gay marriage. Affirmative action, another constitutional solecism for conservatives, still lives. And in June 2020, in a case called Bostock v. Clayton County, the Court, in an opinion by Gorsuch, ruled that the ban on “sex” discrimination in employment in the Civil Rights Act of 1964 made it unlawful to fire an individual merely for being homosexual or transgender.  Gorsuch reached this conclusion in reliance on “textualism” — the method of statutory interpretation championed by Scalia, and for decades a rallying cry of the legal right alongside originalism. Many conservatives were shocked that a Trump appointee invoked Scalia’s method to recognize categories of discrimination that conservatives have long sought to deny legal recognition. It was especially shocking since textualism seemed to serve the very judicial activism in the recognition of novel rights that it was designed  to foreclose. Bostock represents “the end of the conservative legal movement, or the conservative legal project, as we know it,” said Senator Josh Hawley, a Yale-trained lawyer and former Supreme Court litigator for conservative social causes, in a fiery speech on the floor of the Senate.  Hawley was exaggerating for political effect. On issues other than the social conservative ones such as abortion and gay rights that he cares most about, the movement has been hugely successful in changing the legal culture and the composition of the federal judiciary, and in moving public law sharply to the right. And that was before Trump replaced the very liberal Ruth Bader Ginsburg with the youthful and very conservative Barrett, four months after Hawley spoke. The Court’s conservative majority is now larger, younger, and more conservative than it has been in a century, and maybe ever. And yet it remains unclear whether the Court will transform American life as the conservative legal movement hopes, and as progressives dread.  The conservative legal movement developed two methodological responses to the perceived excesses of the Warren and Burger Courts. Both purported to be value-neutral mecha-nisms that were designed to restrain judges.  The main target of conservative legal jurisprudence was progressive interpretations of the Constitution. The Warren Court (1953-1969) recognized a right to marital privacy, including the right to use contraceptives, in the “penumbras” of the Bill of Rights; up-ended the settled understandings of the Fourth, Fifth, and Sixth Amendments to foster a defendant-friendly revolution in criminal procedure; issued many progressive rulings on race, most notably Brown v. Board of Education; practically eliminated prayer in school; and dramatically reorganized redistricting and apportionment rules governing elections under the guise, mainly, of equal protection of the law. The Burger Court (1969-1986) continued the progressive trend. It decided Roe, temporarily invalidated the death penalty, blessed affirmative action in education, and practically eliminated structural constitutional limits on congressional power.  Laurence Tribe of Harvard Law School, a progressive icon, captured conventional wisdom in the academy when he justified these and similar decisions on the ground that the Court’s job in constitutional interpretation is to discern “the contemporary content of freedom, fairness, and fraternity.” As Justice William Brennan, an intellectual leader of the Warren Court, explained, “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” The problem with these views, conservatives maintained, was that they