The Nine [4]
In these years, the Court preserved the right to abortion but allowed restrictions on the practice; the justices permitted the use of affirmative action in higher education, but only in limited circumstances; they sanctioned the continued application of the death penalty but also applied new restrictions on executions. Through one series of cases, the justices allowed for greater expression of public piety in American life, but in a handful of others, they gave a cautious embrace to the cause of gay rights.
These decisions—the legacy of the Rehnquist Court—came about largely because for O’Connor there was little difference between a judicial and a political philosophy. She had an uncanny ear for American public opinion, and she kept her rulings closely tethered to what most people wanted or at least would accept. No one ever pursued centrism and moderation, those passionless creeds, with greater passion than O’Connor. No justice ever succeeded more in putting her stamp on the law of a generation. But the unchanging facade of Cass Gilbert’s palace offers only the illusion of permanence. O’Connor’s legacy is vast but tenuous, due mostly to her role in 5–4 decisions, which are the most vulnerable to revision or even reversal with each new case.
That process—the counterrevolution that had been stymied for twenty years—has now begun.
PART
ONE
1
THE FEDERALIST WAR OF IDEAS
For a long time, during the middle of the twentieth century, it wasn’t even clear what it meant to be a judicial conservative. Then, with great suddenness, during the presidency of Ronald Reagan, judges and lawyers on the right found a voice and an agenda. Their goals reflected and reinforced the political goals of the conservative wing of the Republican Party.
Earl Warren, who served as chief justice of the United States from 1953 to 1969, exerted a powerful and lasting influence over American law. The former California governor, who was appointed by Dwight D. Eisenhower, put the fight against state-sponsored racism at the heart of his agenda. Starting in 1954, with Brown v. Board of Education, which outlawed segregation in public education, the justices began more than a dozen years of sustained, and usually unanimous, pressure against the forces of official segregation. Within the legal profession in particular, Warren’s record on civil rights gave him tremendous moral authority. Warren and his colleagues, especially William J. Brennan Jr., his close friend and strategist, used that capital to push the law in more liberal directions in countless other areas as well. On freedom of speech, on the rights of criminal suspects, on the emerging field of privacy, the Warren Court transformed American law.
To be sure, Warren faced opposition, but many of his Court’s decisions quickly worked their way into the permanent substructure of American law. New York Times Co. v. Sullivan, which protected newspapers that published controversial speech; Miranda v. Arizona, which established new rules for interrogating criminal suspects; even Griswold v. Connecticut, which announced a right of married people to buy birth control, under the broader heading of privacy—all these cases, along with the Warren Court’s many pronouncements on race, became unassailable precedents.
Richard M. Nixon won the presidency in part by promising to rein in the liberalism of the Court, but even though he had the good fortune to name four justices in three years, the law itself wound up little changed. Under Warren E. Burger, whom Nixon named to succeed Warren, the Court in some respects became more liberal than ever. It was under Burger that the court approved the use of school busing, expanded free speech well beyond Sullivan, forced Nixon himself to turn over the Watergate tapes, and even, for a time, ended all executions in the United States. Roe v. Wade, the abortion rights decision that still defines judicial liberalism, passed by a 7–2 vote in 1973, with