The Nine [5]
Through all these years—from the 1950s through the 1970s—the conservatives on the Court like White and Potter Stewart did not differ greatly from their liberal colleagues. The conservatives were less willing to second-guess the work of police officers and to reverse criminal convictions; they were more willing to limit remedies for past racial discrimination; they deferred somewhat more to elected officials about how to organize and run the government. But on the big legal questions, the war was over, and the liberals had won. And their victories went beyond the judgments of the Supreme Court. The Warren Court transformed virtually the entire legal culture, especially law schools.
It was not surprising, then, that on the day after Ronald Reagan defeated Jimmy Carter in 1980, Yale Law School went into mourning. On that day, Steven Calabresi’s torts professor canceled class to talk about what was happening in the country. The mood in the room was one of bewilderment and hurt. At the end, the teacher asked for a show of hands among the ninety first-year students before him. How many had voted for Carter and how many for Reagan? Only Calabresi and one other student had supported the Republican.
The informal poll revealed a larger truth about law schools at the time. Most professors at these institutions were liberal, a fact that reflected changes that had taken place in the profession as a whole. The left-leaning decisions of the Warren and Burger Courts had become a reigning orthodoxy, and support among faculty for such causes as affirmative action and abortion rights was overwhelming.
But even law schools were not totally immune from the trends that were pushing the nation’s politics to the right, and a small group of students like Calabresi decided to turn these inchoate tendencies into something more enduring. Along with Lee Liberman and David McIntosh, two friends from Yale College who had gone on to law school at the University of Chicago, Calabresi decided to start an organization that would serve as a platform to discuss and advocate conservative ideas in legal thought. They considered several names that would showcase their erudition—“The Ludwig von Mises Society,” and “The Alexander Bickel Society”—but they settled on a more elegant choice. They called themselves the Federalist Society, after the early American patriots who fought for the ratification of the Constitution in 1787. Calabresi’s guide on the Yale Law School faculty was Professor Robert Bork. Liberman and McIntosh started a Federalist branch at Chicago and recruited as their first faculty adviser a professor named Antonin Scalia.
The idea for a conservative legal organization was perfectly timed, and not just because of the Republican ascendancy in electoral politics. In this period, liberalism may have been supreme at law schools, but it was hardly an intellectually dynamic force. In the 1960s, liberal scholars at Yale and elsewhere were writing the law review articles that gave intellectual heft to the decisions of the Warren Court, but by the eighties, the failures of the Carter administration turned many traditional Democrats away from the practical realities of law to a more exotic passion—advocating (or decrying) a movement known as Critical Legal Studies. Drawing heavily on the work of thinkers like the Italian Marxist Antonio Gramsci and the French poststructuralist Jacques Derrida, CLS devotees attacked the idea that law could be a system of neutral principles, or even one that could create a fairer and more just society. Rather, they viewed law mainly as a tool of oppression that the powerful used against the weak. Whatever its ultimate merits, CLS was singularly inconsequential outside the confines of law schools, its nihilism and extremism rendering it largely irrelevant to the work of judges and lawmakers. At law schools, then, the field was largely open