No Supreme Court advanced equality more than the Warren Court (1953-1969). Earlier courts emphasized property rights. The Warren Court focused on individual rights.
It advanced racial equality, striking school segregation laws and bans on interracial marriage. (Brown v. Board of Education and Loving v. Virginia). It breathed life into the Fourth, Fifth, and Sixth amendments, excluding evidence obtained in unlawful searches, requiring “Miranda warnings,” affording indigent defendants free counsel, and expanding the concept of a search to include technological intrusions into private spaces. (Mapp v. Ohio, Miranda v. Arizona, Gideon v. Wainwright, and Katz v. United States).
It protected free speech and a free press, requiring proof of actual malice before a public official could sue for defamation, and outlawing mandated public school prayer. (New York Times v. Sullivan and Engel v. Vitale). It kept the government out of our bedrooms when it struck laws banning access to contraception as intruding on the right to privacy. (Griswold v. Connecticut). And it enshrined the concept of equal representation with its “one man, one vote” malapportionment decisions, striking state counter-majoritarian attempts to dilute the vote of large urban centers to protect powerful business interests. (Baker v. Carr and Reynolds v. Sims).
Many of the civil rights we take for granted today are rooted in the Warren Court’s jurisprudence. That “judicial revolution” sparked a conservative legal counterrevolution. In just three short years (1969-1972) Nixon appointed four Supreme Court Justices to the bench, including Chief Justice Warren Burger. The Burger Court was not the conservative court we have today, and it did not overrule the Warren Court’s landmark decisions. But with few exceptions it began to pare back their reach. (A process accelerated and continued by the Rehnquist and Roberts courts).
Discontent with the prevailing liberalism of the ’60s, business-minded conservatives founded The Heritage Foundation in 1973. Inspired by an anti-left, pro-business memorandum written by Justice Powell when he was a corporate lawyer, it sought to shape a more conservative view of business, government, and politics. It published a “Mandate for Leadership” in 1981, which Reagan used as a blueprint for his administration and has remained a leading source of conservative influence in Washington to this day.
Powell and The Heritage Foundation believed the American free enterprise system was under a decades-long attack from the left, and saw school campuses as “the single most dynamic source” of the attack. In 1982, as if on cue, Edwin Meese and Robert Bork, Reagan’s Attorney General and Solicitor General, helped found the conservative Federalist Society in the country’s elite law schools. Its aim: to advance conservative legal principles by identifying promising young law students, indoctrinating them, placing them in important government and corporate positions, and ultimately vetting and recommending the most reliable adherents for the bench.
This is no secret. The Federalist Society has always been open about its goal. Progressives and liberals did not pay attention.
The importance of this organization in reshaping the federal judiciary cannot be overstated. It was hit-and-miss in the early days, but by 2006 it had four members on the Supreme Court: Thomas, Scalia, Roberts, and Alito (and countless others in lower courts). A 2008 study found them to be four of the five most conservative justices since 1937. Kennedy was the lone Republican non-Federalist Society member, and he still ranked 10th. Gorsuch, a Federalist Society member, replaced Scalia. Brett Kavanaugh, a Federalist Society member, will soon replace Kennedy. With his ascension, the Federalist Society has captured a majority of the court and American jurisprudence is set to become the most conservative in history.
The clear-eyed conservative ground game to retake and reshape the courts is impressive. The court drives conservatives to vote. Progressives, liberals, and many centrists, seem only vaguely aware of any decision not involving a hot-button social issue. They will soon be victims of their own apathy.
I have long lamented that apathy, but done little about it. We need to have a conversation about the importance of the third branch of government.
Brian Holt is a resident of Oak Park.