David's Hammer: The Case for an Activist Judiciary

By Clint Bolick | Go to book overview

5. The Rehnquist Court: A Judicial
Counterrevolution Fizzles Out

In the first chapter, I recounted how miserable I was in law school. Three thousand miles from the calming familiarity of my native Garden State, painfully out of place in an extensively planned com- munity that must consider itself the Birkenstock capital of the world, and mired in a law school that despite its extensive racial and ethnic diversity was stultifyingly homogeneous when it came to philosoph- ical diversity, I considered dropping out. Making matters worse was my perception that I was not gaining the skills or experience necessary to pursue my chosen career in constitutional law.

Then I saw something that changed my life forever: a cover story in Student Lawyer magazine, the law school organ of the American Bar Association. Depicted on the cover was a man on a horse wearing a white cowboy hat and a black Lone Ranger mask. The caption read, “Capitalist Cowboys: Heroes or Shills?”

I was intrigued.

The article inside described Pacific Legal Foundation (PLF), a conservative, nonprofit public interest law firm that advocated for private property rights, free enterprise, and limited government. It sounded like exactly the type of place I wanted to work. I was overjoyed that it existed. Even better, it was located only 20 miles away in Sacramento. Given Davis's proximity to the Napa Valley, Lake Tahoe, and PLF, all of a sudden the school seemed downright convenient.

PLF was one of the first in a generation of regionally based conser- vative public interest law firms. For decades, the left had monopo- lized the field of public interest law. First the American Civil Liberties Union and the NAACP Legal Defense and Education Fund took to the courts, then environmental and consumer groups. The conserva- tive groups were created, upon the recommendation of Lewis Powell (later to become a justice of the U.S. Supreme Court) in a report for the U.S. Chamber of Commerce, to fill the “empty chair” in the courtroom, typically on behalf of taxpayers or business groups.1

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David's Hammer: The Case for an Activist Judiciary
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Foreword ix
  • 1. Mrs. Swedenburg Goes to Court 1
  • 2. Judicial Activism: Everybody's Favorite Bogeyman 19
  • 3. the Origins and Importance of Judicial Review 35
  • 4. Judicial Activism: The Bad and the Good 49
  • 5. the Rehnquist Court: A Judicial Counterrevolution Fizzles out 69
  • 6. Model Justice 87
  • 7. Economic Liberty 97
  • 8. Private Property Rights 113
  • 9. School Choice 127
  • 10. State Constitutions: The Beckoning Frontier 139
  • 11. an Activist Judiciary, for All the Right Reasons 157
  • Notes 165
  • Index 179
  • About the Author 189
  • Cato Institute 192
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