In the first chapters of “The Nine,” Jeffrey Toobin’s look into the history, personalities and often opaque workings of our nation’s highest court, the author sets up the back story for what has become one of the most protracted political and ideological debates in American jurisprudence; that of so-called judicial activism versus strict constructionism.
Toobin argues the modern conservative backlash in American law was a response to the Warren Court of the 1950s and 60s. The popular three-term Governor of California was nominated by Eisenhower but the court under his leadership grew more liberal than the Republican president could have imagined.
The Warren Court gave us Brown v. Board of Education, Miranda v. Arizona and New York Times v. Sullivan (which set a high standard for actual malice in libel and defamation cases). Many of the cases deliberated by this court set what Toobin called “unassailable precedents,” controversial at the time but that would be unthinkable to reverse now.
During these years Toobin says “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.”
This liberal culture in American law schools and the minority of conservative minded students and young lawyers and faculty sets the context for the birth of the Federalist Society, founded – in part – with the help of current Supreme Court justice Antonin Scalia and famously failed nominee Robert Bork. (Subsequent membership also included current justices Samuel Alito and John Roberts).
The Federalist society – by its own account – seeks reform in the American judicial system in the form of a return to the an “originalist interpretation” of the United States Constitution. Justice Scalia argues the constitution is not the “living document” so many of us were taught in high school civics, but that it should be interpreted in a manner consistent with how the framers intended. In this politically charged environment, some liberal critics counter this itself could also be considered judicial activism.
We get a fresh dose of this debate with each Supreme Court confirmation hearing, most recently in the past week with Judge Sonia Sotomayor.
Toobin is setting us up here for his highly researched account of the Rehnquist Court but the themes here are also the subtext for many of today’s ideological legal conflicts. The skirmishes over state and federal court rulings, constitutional interpretations and judicial nominations that we see played out daily in the media are but footnotes in this war of legal ideas.
