Posted: October 9, 2008
teven Teles's The Rise of the Conservative Legal Movement tells the engaging story of "how the conservative legal movement, outsmarted and undermanned in the 1970s, became the sophisticated and deeply organized network of today." Well written and well researched, the book examines two generations of conservative public interest law firms, the development of the Federalist Society, and the emergence of the informal network of legal scholars associated with "law and economics." Along the way it provides many useful side lessons. Activists on both the Left and the Right can learn about the tactics of intellectual insurgency and networking. Political scientists can benefit from Teles's explanation of how liberalism became entrenched in legal institutions just as conservatives were starting to dominate electoral politics. And grant-makers can learn the importance of adopting a long time-horizon when engaged in a battle of ideas.
While he presents the "battle for control of the law" as primarily an intellectual struggle, Teles, an associate professor of political science at Johns Hopkins, focuses not on the ideas themselves, but on the institutions developed to refine and promote them. As he explains, "ideas need networks through which they can be shared and nurtured, organizations to connect them to problems and to diffuse them to political actors, and patrons to provide resources for these supporting conditions." One of the book's major strengths is that its author is sufficiently sympathetic to conservative ideas to treat them as serious, principled alternatives to contemporary liberalism, but detached enough to avoid becoming a cheerleader or presenting late 20th-century politics in Manichaean terms.
Teles wisely starts with a rich description of the "liberal legal network" conservatives rebelled against. Why did the Warren Court's liberal activism so quickly spread throughout the entire federal judiciary and then to state courts? Why were Republican presidents unsuccessful for so long in using judicial appointments to reverse this tide? The answer lies in changes in the legal institutions surrounding the courts. Most important was the transformation of law schools. This was the result of two generational shifts: first, New Dealers became the leading lights in major law schools; then, young scholars who came of age worshiping the Warren Court streamed into the legal academy. Teles notes that the number of full-time law professors grew by nearly 250% between 1962 and 1977. This meant that "hiring among law schools was especially intense at precisely the time that the law students who would fill those positions were moving decisively to the left." The more prestigious the school, the more marked the leftward movement. One consequence was the new emphasis on "clinical education" that required students to engage in the nitty-gritty work of serving clients. The clients they served, of course, were not General Motors and Microsoft, which could afford more experienced help. Instead, clinical programs provided free manpower to legal aid offices, public defenders, and various public interest law firms on the left.
A similar change took place within the American Bar Association (ABA), albeit in a much shorter period of time. In the 1950s the leaders of the ABA still reflected their corporate clients' conservative posture. They attacked public funding of lawyers for the poor as another instance of creeping socialism. By the late 1960s the ABA had become a powerful advocate for Legal Services, defending it against attacks from Republicans. Teles also shows how foundations, especially the Ford Foundation, helped build a broad network of liberal public interest law firms. This is a familiar tale, but the author does a particularly good job showing how each of these developments reinforced the others: foundations defended their support for left-leaning groups by enlisting the help of bar leaders. The Ford Foundation funded clinical programs that both increased the number of activist law professors and provided manpower for public interest law firms. Thus brick by brick rose the fortress that conservatives soon tried to storm.
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Teles devotes two chapters to conservative public-interest law firms: one to the failure of the business-orientated organizations created in the 1970s, and another to more successful second-generation groups, particularly the Institute for Justice (I.J.) and the Center for Individual Rights (CIR). The first generation—regional organizations such as the Pacific Legal Foundation and the Mountain States Legal Foundation—was a business-dominated response to the success of liberal public-interest law firms. They resisted specialization, focused primarily on writing amicus briefs in cases of interest to their business patrons, and remained distant from Beltway politics. In a perceptive and scathing memo widely circulated among conservative foundations, Michael Horowitz (soon to become legal counsel for the Office of Management and Budget in the Reagan Administration) charged that the tactics of these regional organizations gave credence to their opponents' claim that they were little more than shills for business interests. Horowitz argued that in order to "undermine the claim that liberals represented a trans-political public interest," conservatives must insulate themselves from the demands of business leaders—who are often more interested in getting goodies from government than in defending free markets—and above all, find ways to attract idealistic young lawyers. The key was to pursue cases that "would associate conservatives with the underdog, individuals unjustly treated by large institutions, while simultaneously associating the Left with malevolent, unresponsive concentrations of power."
These ideas were put into practice when Clint Bolick and William "Chip" Mellor, two disillusioned veterans of the first-generation firms, founded the Institute for Justice in 1991. I.J. made its name by challenging government regulation that restricted the ability of African-American hairdressers and taxicab drivers to pursue their professions. It hit the jackpot inKelo v. City of New London (2005) on the Takings Clause, which it lost in the Supreme Court but won in the court of public opinion. For I.J., constructing strange coalitions became an art form. They persuaded the NAACP to write a brief supporting their position in Kelo. Afterwards, Bernie Sanders, the only socialist in Congress, attacked the Rehnquist Court for not being sufficiently vigilant in protecting private property. For I.J., presenting conservatives as defenders of the little guy was as important as winning court cases.
The other successful second-generation law firm, the Center for Individual Rights, did not adopt I.J.'s tactics for selecting sympathetic plaintiffs or using the media; but it did keep its distance from business, insist upon trying its own cases, and urge courts to extend legal protections to new groups rather than practice judicial restraint. One of CIR's greatest victories came in Rosenberger v. University of Virginia (1995), in which the Supreme Court held that a public university cannot discriminate against religious organizations in the distribution of student funds. CIR invoked the First Amendment to fight political correctness on campus, and Justice Harlan's "colorblind" interpretation of the 14th Amendment to attack affirmative action. The first generation of conservative law firms attacked judicial activism; the second searched for ways to employ it.
No conservative legal organization has received more attention than the Federalist Society, which Teles describes as "the most vigorous, durable, and well-ordered organization to emerge from this rethinking of modern conservatism's political strategy." He shows that the Society became influential largely because it does so much less than most people think. It does not take positions on issues, nor does it endorse judicial candidates. It is an organization dedicated to debate and to networking. Its founders understood that endorsing policies and candidates would inevitably lead to factional strife. Their goal was to promote conservatism among law students and lawyers by demonstrating that conservatives could hold their own in debates with the liberals who dominate the legal academy; and to create a sense of camaraderie and efficacy among the lonely conservatives who found themselves deep within the belly of the liberal legal network. In prestigious law schools in the 1980s it took guts to join the Federalist Society. But over the long run membership had its rewards: in the Reagan years "Society membership was a valuable signal for an administration eager to hire true-believers for bureaucratic hand-to-hand combat." The number and prominence of members grew steadily over the next two decades, but the Federalist Society itself did not alter its modest organizational strategy. Although tempted to endorse Supreme Court nominees, it demurred. The wisdom of this decision became apparent when Society members divided bitterly over President George W. Bush's star-crossed nomination of Harriet Miers.
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Teles also traces the growing influence of "law and economics" within the legal academy. These chapters are filled with interesting details: the roles of Aaron Director and Richard Posner in establishing the law and economics program at the University of Chicago; the Olin Foundation's use of law and economics programs to create a counterweight to the Left's Critical Legal Studies; Henry Manne's success in developing the George Mason University Law School as a proving ground for law and economics professors. Teles concludes that "law and economics is the most successful intellectual movement in the law of the past thirty years, having rapidly moved from insurgency to hegemony."
In these chapters Teles in effect shifts from organizational analysis to intellectual history. After all, the law and economics movement has little organization; its proponents are united only by a set of beliefs. In part, it flourished because it had interesting things to say about areas of the law stretching from torts to bankruptcy. Just as importantly, it offered a relatively simple model that could be used to churn out the law review articles essential for tenure. It is important to note that while many law and economics professors are conservatives, some are not. Conversely, some conservatives are highly skeptical of the school's radically individualistic worldview. In other words, the most successful component of the conservative legal "movement" was the one that was least reliably conservative.
This indicates how hard it is to examine the conservative movement's "support structure" without examining the substance of the movement's ideas. The closer one looks at the organizations and individuals Teles studies, the clearer it becomes that they are united more by antipathy to a common enemy than by shared beliefs. The first generation of conservative public-interest law firms defended judicial restraint, federalism, and the privileged position of business. The second encouraged judicial activism, warned of the dangers of "grassroots tyranny," and favored market competition over cozy collusion. The libertarianism so common among law and economics enthusiasts makes many social conservatives cringe. The Federalist Society understood that it could preserve its big tent only by avoiding stands on specific issues.
Steven Teles prudently describes his story as the rise of the conservative legal movement, not its triumph. In the conclusion he claims conservatives have "figured out how to erode the competitive advantage of legal liberalism," but "have not been able to...move beyond competition to actually displace the liberal legal network and construct a dominant regime of their own." The reader is left to ponder what all this interesting organizational and intellectual effort has accomplished. While the federal judiciary has become somewhat more conservative, state courts have picked up the mantle of Warren Court activism. If Barack Obama wins the November election, his appointments will undoubtedly reduce the influence of Federalist Society members on the federal bench. While conservatives can take pride in their organizational and intellectual achievements, liberals can take heart in the remarkable resilience of the liberal legal network.