The Nine [6]
So the Federalist Society both reflected and propelled the growth of the conservative movement. It held its first national conference in 1982, and by the following year there were chapters in more than a dozen law schools. Recognizing the intellectual potential of the society, conservative organizations like the John M. Olin and Scaife foundations made important early grants that allowed the Federalists to establish a full-time office in Washington. The Reagan administration began hiring Federalist members as staffers and, of course, appointing them as judicial nominees, with Bork and Scalia as the most famous examples. (Bork and Scalia both went on the D.C. Circuit in 1982. Calabresi himself went on to be a professor of law at Northwestern.)
The young Federalists who started organizing in the early eighties did not merely strive to recapitulate the tactics of their conservative elders. The prior generation, those who waged their decorous battle against the extremes of the Warren Court, preferred “judicial restraint” to “judicial activism.” For conservatives like Justices Stewart or John Marshall Harlan II, who were two frequent dissenters from Warren Court decisions, the core idea was that judges should defer to the democratic branches of government and thus resist the temptation to overturn statutes or veto the actions of government officials. But the new generation of conservatives had more audacious goals. Indeed, they did not believe in judicial restraint, and they represented a new kind of judicial activism themselves. They believed that constitutional law had taken some profoundly wrong turns, and they were not shy about demanding that the courts take the lead in restoring the rightful order.
With the election of Ronald Reagan, conservative ideas suddenly had important new sponsors in Washington. Reagan was elected on promises of shrinking the federal government, which he proposed to do by cutting the budgets for social programs. Many in the Federalist Society sought a legal route to the same goal. Back in 1905, the Supreme Court had said in Lochner v. New York that a law that set a maximum number of hours for bakers was unconstitutional because it violated the bakers’ freedom of contract under the Fourteenth Amendment’s protection of “liberty” and “property.” By the 1940s, the Roosevelt appointees to the Supreme Court had repudiated the “Lochner era,” and for decades no one had seriously suggested that there might be constitutional limits on the scope of the federal government’s power. Then, suddenly, in the Reagan years, some conservatives started questioning that wisdom and asserting that much of what the federal government did was unconstitutional. (The second event ever sponsored by the Federalist Society was a speech at Yale in 1982 by Professor Richard Epstein of the University of Chicago Law School in favor of Lochner v. New York.) While Reagan was arguing that Congress should not pass regulations, the Federalists were saying that, under the Constitution, Congress could not.
Edwin Meese III, Reagan’s attorney general in his second term, provided a framework for the emerging conservative critique of the Warren and Burger era when he called for a “jurisprudence of original intention.” The words of the Constitution, he said, meant only what the authors of the document thought they meant. Or, as the leading “originalist,” Robert Bork, put it, “The framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.” According to Bork, the meaning of the words did not evolve over time. This was an unprecedented view of the Constitution in modern times. Even before the Warren Court, most justices thought that the words of the Constitution were to be interpreted in light of a variety of factors, beyond just the intentions of the framers. As the originalists’ greatest adversary, William Brennan, observed in 1985, “the genius of the Constitution rests not in any static meaning it might have had in a world that is