basis of race was unconstitutional per se, framed its decisions as bound up in the state of public education and appeared to be acting as a “third legislative chamber” rather than as a judiciary properly limited to “keeping Congress and the states within their accredited authority.”30
Some of the Warren Court’s decisions, particularly Engel v. Vitale, which blocked public schools from opening with a nondenominational prayer even when non-compulsory, activated a grassroots movement of evangelicals. The Court cited not a single precedent for its decision, which conservatives viewed as an exercise of raw political power. Americans inundated both the Supreme Court and Congress with mail. In his doctoral dissertation on the rise of the religious right, Ben Sasse, now a U.S. senator from Nebraska, wrote, “The House of Representatives evaluated an unprecedented 145 proposed constitutional amendments in 1964 to reestablish school prayer by changing the First Amendment, followed up by scores more proposals in 1966 and 1970.”31
The Court’s constitutional improvisation fueled Barry Goldwater’s 1964 presidential campaign, an apparently devastating defeat now widely regarded as the genesis of the conservative movement that would eventually carry Ronald Reagan to the White House. Goldwater decried the Court’s diktats on reapportionment and prayer in schools, calling them an exercise of “raw and naked power,” proof that “of all three branches of Government today’s Supreme Court is the least faithful to the constitutional tradition of limited government, and to the principle of legitimacy in the exercise of power.”32 Echoing the Griswold dissenters, Goldwater declared that “the job of keeping the law up to date should be in the hands of the legislatures, the Congress and the common law courts, not just in the hands of the nine appointed Justices.” If the policy that resulted was not the one favored by conservatives, so be it. “[T]o a constitutionalist, it is at least as important that the use of power be legitimate than that it be beneficial.”33
Following the decision in Miranda v. Arizona, which went beyond constitutional prohibitions on forced self-incrimination to mandate the now-famous formulation of rights recited at every arrest, Richard Nixon made “law and order” the central theme of his presidential campaign in 1968.34 He promised to nominate “strict constructionists who saw their duty as interpreting and not making law.”35 Nixon thought strategically about his judicial appointments, but his constitutional views were in fact more liberal than those of many of his voters.36 While he really did care about law and order, he was not noticeably devoted to constitutional originalism, and his appointments to the Supreme Court were not much better than Eisenhower’s. Chief Justice Warren had already announced his retirement before Nixon took office, but President Lyndon B. Johnson’s attempt to replace him with his friend and political ally Abe Fortas ran into a Senate filibuster. Nixon appointed Warren E. Burger, who, though not the radical that Warren was, oversaw seventeen years of muddled opinions, including the infamous Roe v. Wade. Nixon also appointed Associate Justices Harry Blackmun, the author of Roe, Lewis F. Powell, and William Rehnquist. Only Rehnquist was consistently a constitutionalist.
President Gerald Ford’s only Supreme Court appointment, John Paul Stevens, also turned out to be a disappointment for conservative voters. Stevens’s liberalism might have “surprised his appointer,” as George Will has written, but it apparently did not displease him.37 In 2005, Ford reflected, “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.”38 Conservatives, however, certainly were displeased. Among his other affronts to sound constitutional interpretation, Stevens authored the opinion that conferred on government agencies broad discretion in interpreting acts of Congress,39 and he dissented from the landmark Heller decision, which affirmed that the right to bear arms is an individual right.40
The records of Eisenhower, Nixon, and Ford showed conservative voters that they could not trust Republican presidents to appoint justices who felt bound by the text of the Constitution as understood by those who ratified it.
By the time Ronald Reagan was elected president in 1980, the conservative electorate was actively concerned about judges. The Republican platform called for judges who respected “traditional family values and the sanctity of innocent human life,”41 leading liberal media and special interest groups to accuse Reagan of imposing an abortion “litmus test” on potential judges. He denied the charge, but he promised to appoint judges who opposed the judicial activism of the Warren and Burger Courts. He also promised that one of