ACSBlog: The Blog of the American Constitution Society

by Douglas Kendall, founder and executive director of Community Rights Counsel, a public interest law firm that promotes constitutional principles.

Media coverage of the Supreme Court tends to be dominated by the scoreboard, with stories chronicling the number of closely divided cases won by the “liberal” and “conservative” wings of the Court.   But before we start chalking up wins and losses for the October 2007 term, we should pause: too much staring at the scoreboard can obscure what’s really happening on the field (or bench).   Conservative “wins” mean something very different now, because the conservative judicial project has changed dramatically.

For decades, conservative legal giants were apostles of judicial restraint – Justices like Felix Frankfurter and the younger John Marshall Harlan and theorists like Harvard Law Professor Alexander Bickel.  Their goal was to cabin what they deemed to be the “excesses” of the Warren Court and to make the Supreme Court the “Least Dangerous Branch,” as Bickel once described it.

But restraint fell away in the 1980s as conservative domination of the Supreme Court became possible.  Almost overnight, Bickel, Harlan, and Frankfurter were displaced by radical libertarians such as Richard Epstein, prophets of law and economics, such as Richard Posner, and conservative originalists, such as Raoul Berger and Robert Bork.  In 1985, Epstein took to the opinion pages of the Wall Street Journal with a piece entitled “Needed: Activist Judges for Economic Rights,” a move that would have been considered heresy a decade before.   

This heady brew of activist conservative approaches to the law fueled the rise of the Federalist Society.  It was institutionalized at the Reagan Justice Department when Edwin Meese became Attorney General in 1985.  Charles Fried, Reagan’s Solicitor General at the time, highlighted one aspect of this new approach when he wrote of the “quite radical project” by Meese and his Federalist Society advisors to use the Fifth Amendment’s Takings Clause “as a severe brake upon federal and state regulation of business and property.”

Meese himself called for “constitutional calisthenics” and he commissioned a series of reports with titles such as “The Constitution in the Year 2000 and “Economic Liberties Protected by the Constitution.”  These little blue books distilled the various threads of conservative legal thinking into a concrete agenda for constitutional change.

The four members of the Court’s conservative wing – Chief Justice John Roberts, and Justices Clarence Thomas, Antonin Scalia, and Samuel Alito -- are all products of this Reagan Administration/Federalist Society milieu, and you can trace many of the legal conclusions in the opinions these Justices wrote or joined last term to their roots in these little blue books. Most notably, you see past as prologue in the radical reconstruction of the Equal Protection Clause advanced in the portions of Chief Justice Roberts’ Seattle schools opinion that Justice Kennedy refused to join, and in the dramatic constriction of access to federal courts advocated by the Chief in his dissent in the global warming case. 

Today, the biggest open question is whether Roberts will be able to secure the fifth vote necessary to make these positions the law of the land. Five like-minded justices, steeped in the conservative project of the 1980s and 1990s could also dramatically change the direction on law in a host of areas in which the Court is now closely divided – the executive power of the President, takings, the Establishment Clause, and more.   If all you see is the scoreboard, you’ll miss the stakes – higher than they have been in years – of the game.