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The Myth of the Conservative Legal Movement

July 14, 2008

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The Myth of the Conservative Legal Movement

Under Consideration: Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law, Princeton University Press (2008), 358 pages. 

Steven Teles set out to write a book explaining how conservatives in the law achieved stature and success and transformed a profession that had become monolithically liberal. What The Rise of the Conservative Legal Movement reveals, however, are that reports of liberalism’s demise have been greatly exaggerated and just how far away we are from a conservative and constitutionalist legal culture.

The consequences of this are profound. There will be an endless round of court decisions undoing traditional mores, practices, limitations on federal power, and punishments, and each of these developments will be cheered by the majority of legal academics and lapped up by fledgling lawyers as part of their legal training. Legal public-interest firms will continue to push new cases before well-disposed judges to allow them to build on liberal precedents. Anyone sympathetic to federalism and constitutionalism will be in much the same position they”€™ve been in since the days of Jefferson”€”nearly powerless to stop it.

Teles begins his book by quoting a 1972 memo from within the Nixon White House. Then-speech writer and advisor Patrick Buchanan noted that the president’s four first-term appointments to the Supreme Court had stemmed the post-1937 tide of liberal judicial legislation.

Buchanan’s analysis, needless to say, proved seriously mistaken.

The experience of getting burned by Republican appointees led conservatives to conclude that electoral success was not enough, that they must do something to counterbalance liberals”€™ uncontested dominance of the legal system.

Teles first describes what he calls the Liberal Legal Network (LLN), which consisted of left-leaning academia, the legal profession, and public-interest litigation organizations that work in tandem to extend the frontiers of liberal legal doctrines. In the 1950s, says Teles, the American Bar Association (ABA) ceased to be generally conservative and became an adjunct of the liberal wing of the Democratic Party. It joined the public-interest organizations and legal academia in supporting the new-fangled legal doctrines that had overturned the old constitutional order and made the New Deal into a kind of orthodoxy.

Teles highlights Gramsci‘s famous idea of “intellectual hegemony,” that is, the establishment of conventions and ideas as “Truth,” regnant and even taken for granted. As he explains, loose construction, judicial lawmaking, and centralized public administration were incontestable by the 1960s. Anyone who opposed them would be shut out of positions of power. Although the electoral position of the New Deal coalition frayed notably by the decade’s end, this did not translate into a rollback of, or even a halt to, liberals”€™ judicial lawmaking.

One response was the first generation of conservative public-interest legal efforts, which failed dismally. In general, the patrons, businessmen, and local lawyers behind them did not agree on a suitable legal strategy. The patrons tended to be wealthy industrialists, and their commitment to conservative litigation in signal instances extended only to efforts likely to have a positive effect on the bottom line. They did not care to push for free markets, for example, where free-market policies might reduce their profits. Of course, statism often redounds to the benefit of what Burton Folsom calls “political entrepreneurs,” such as wielders of government-granted monopolies, and so the conservative public-interest lawyers of the first generation repeatedly found themselves having to choose between good causes and future funding.

Conservatives did establish a substantial beachhead in legal academia in the 1970s, however. Their great success came with the birth of the Law and Economics field. Henry Manne‘s seminars for aspiring legal academics established the seriousness, indeed the substantial allure, of an economic approach to legal analysis.

Of great importance to the development of Law and Economics was Richard Posner‘s conversion from law clerk to the ultra-liberal Justice William Brennan (perhaps the most destructive judge to the American constitutional tradition) to leading light of the conservative legal movement. Posner, who’s become almost synonymous with the field of Law and Economics, has all of the traditional attributes of the successful academic, in spades: top-of-the-line credentials, first-rate Supreme Court clerkship, premier government experience, and, most importantly, brilliantly original, highly variegated, and notably voluminous scholarly output. His professorship at the University of Chicago Law School and, later, position on a federal appellate court gave him even more weight.

In short, Posner was a legal star, and he raised the stature of the entire field of Law and Economics. As Teles chronicles, Manne’s work, Posner’s example, and the funding decisions of substantial conservative foundations led to the creation of centers for law and economics at several top-flight law schools. Ultimately, that meant that an approach that was inherently un-liberal”€”precisely because it was so Classically liberal”€”was injected into the faculties of several of the opinion-making law schools.

If the rise of Law and Economics is a major landmark in conservatives”€™ ongoing struggle to bend the arc of American legal development away from ultra-liberalism, the other is the growth of the Federalist Society. Its influence is more diffuse and indirect than that of Law and Economics, but observers believe that it has been substantial.

The Federalist Society is, at root, a debating society. When I was chapter president at the University of Texas in 1989-90, my chief function was to bring in outside speakers to debate members of our faculty. Since my main legal interest was, and is, federalism, I had Chuck Cooper, M.E. Bradford, and Dick Armey (yes, that one) come talk, as well as William Bradford Reynolds on affirmative action. It was at that time that Reynolds assured me that Edwin Meese had long known Anthony Kennedy and vouched for him as principled a justice as one might want. In the end, national president Eugene Mayer told me that the powers-that-were at the national office (Mayer himself?) didn”€™t want me to have any more speakers on that general topic, and so I had Cato’s Roger Pilon on I-don”€™t-remember-what (I do recall that I argued with him in the Q&A) and Ernest van den Haag on capital punishment (which, it seems to me, is also mainly a federalism issue, though he wanted to argue for its rightness).

Students and a few faculty members attended these events. Society functions”€™ chief effects were to satisfy members”€™ intellectual curiosity and to highlight the fact that non-liberal legal intellectuals were not so rare as UT Law students might have thought. The national conferences, one of which I attended, served similar functions, as did the journal the Society sponsored.

Frankly, I always wondered why anyone bankrolled the Federalist Society, as its effects could not be easily measured. As Teles tells it, the Society’s chief outputs are in the areas of networking and what might be called morale”€”meaning it was almost impossible to gage what, if anything, the group was actually accomplishing.

The distinctive Federalist Society James Madison tie”€”shown on Teles’s dust jacket”€”came to be a badge of honor among non-liberals of various stripes. Those who demonstrated commitment to conservatism, broadly understood, through membership in the Federalist Society seemed likely to remain dedicated to the principles of Reaganism if appointed to high office. After all, the career repercussions of membership were not positive. Participation in Federalist Society events thus became a kind of marker of people who were fit, by Reaganite reckoning, for appointment to high posts in both the Executive and the Judicial branch.

Following in the wake of things like the Federalist Society was the creation of an ostensibly “€œconservative,”€ and Law and Economics-centered, law school at George Mason University. Earlier efforts to convert existing Podunk law schools into the great bastion of market-centered law had failed, and GMU Law promised to become a new beacon.

In short, while GMU has achieved notable success, vaulting into the ranks of the top third of law schools, it certainly has not given the Yales and Harvards, or even the Georgetowns and Texases, a run for their money. Teles notes that this limited success may be said to disprove the classic theory that discrimination (in this case, against conservative and libertarian intellectuals) is a serious competitive disadvantage. It seems to me to demonstrate the validity of the argument of the Court majority in Sweatt v. Painter that a law school’s quality is not determined by one factor (facilities or faculty), but by a set of factors (facilities, faculty, reputation, alumni network, etc.). GMU Law’s mere ability to compete with established schools for outstanding junior faculty members does not readily translate into ability to join them at the top of American legal education, nor will it anytime soon.

Teles last examines recent conservative efforts in the area of public-interest law, particularly as represented in the history of the Institute for Justice (IJ) and the Center for Individual Rights (CIR). His account is by turns somewhat heartening and downright disturbing.

Elite conservative public-interest law has come of age. With appellate advocacy, conservatives now can match their liberal rivals. However, several elements of Teles’s account provide cause for unhappiness.

First, conservative attorneys are unwilling to undertake the kind of broad-gauge public-interest program of advocacy that has made such a success of their rivals. Given one sexy appellate precedent, that is, conservatives willing to undertake lower-court tasks to instantiate that precedent into the warp and woof of American law are nearly absent.

Secondly, conservative public-interest litigators have essentially given up on limited-government litigation. The chief efforts for which conservative public-interest efforts are notorious, then, involved advocacy of mistaken liberal doctrines”€™ extension. Thus, for example, IJ argued in Kelo v. New London for a new take on the historically groundless Incorporation Doctrine, in which the Takings Clause of the Fifth Amendment would be used to override state law”€”the very opposite of federalism. Fortunately, it failed, and its defeat led IJ to do what it should have done in the first place”€”push for legislative reform of eminent domain law at the state level. Dozens of states have proven receptive to this pitch. Still, it was not correct principle, but the vagaries of judicial politics, that led to this outcome.

CIR was responsible for the politically desirable but constitutionally groundless anti-affirmative action decisions of the late “€™80s. Yes, affirmative action is unjust, but”€”as Raoul Berger showed in his classic Government by Judiciary: The Transformation of the Fourteenth Amendment“€”banning it was not among the limited aims the Fourteenth Amendment was intended to accomplish. Rather than advocate an accurate reading, CIR in those cases urged judges to legislate the politically desirable result.

In other words, both IR and CIR are bound, in many of the cases they pursue, down the liberals”€™ path of judicial legislation. Like left-wing public-interest lawyers, they present legislative programs to judges who seem likely to don the mantle of judicial legislators in the cases that come before them”€””€œMeet the new boss….”€

The Rise of the Conservative Legal Movement is supposed to be a chronicle of a right-wing success. What it really demonstrates is the continued dominance of liberal norms in the legal profession, legal academia, and the judiciary. 

GMU Law is not a top-flight school, and all of the faculties of the big names remain overwhelmingly liberal. The reigning approach to law in the ABA and all the top law schools was and is essentially legislative. Even “€œoriginalists”€ such as Antonin Scalia (an early and long-time participant in Federalist Society activities) accept liberal contrivances, such as the Incorporation Doctrine, that would have been unthinkable before the reign of the Left.

Conservative public-interest law in many cases reinforces the great edifice of liberal precedent. To that extent, its existence offers very little hope to anyone sincerely interested in the restoration of a truly constitutional federal government in America. The Federalist Society—and the supposed high-flying cabal of Borks, Posners, and Thomases bent on revivifying government by the consent of the governed—is really a coffee klatch for non-liberals. It possesses no real power, and was never intended to. 

America’s legal culture has not much improved since that day when Pat Buchanan sent his optimistic memorandum to Nixon. Liberalism is still in the saddle.

Kevin R. C. Gutzman is co-author, with Thomas E. Woods Jr., of Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush.

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