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Books and Culture

Gerald J. Russello
Unfinished Legal Business
Conservative public-interest law awaits a third generation of scholars.
9 May 2008

The Rise of the Conservative Legal Movement: The Battle for Control of the Law, by Steven M. Teles (Princeton University Press, 339 pp., $35.00)

In 2005, George W. Bush’s nomination of Harriet Miers to replace Justice Sandra Day O’Connor on the Supreme Court set off a blaze of protest from lawyers and legal scholars on the right. The conservative legal movement had spent the last 30 years preparing a generation of appellate lawyers and judges to fill vacancies on the court; Miers, whose qualifications stemmed largely from her loyalty to the president, represented a lost opportunity. Faced with pressure from conservatives, the president finally relented, accepting Miers’s withdrawal and nominating Judge Samuel A. Alito, a solid conservative with experience as a federal prosecutor and in the solicitor general’s office.

In his new book, Steven Teles, a visiting lecturer at Yale Law School, explains how the conservative legal movement attained such prominence that it could force a president’s hand. In an earlier age, he points out, observers as varied as Alexis de Tocqueville and Rufus Choate identified lawyers as a strongly conservative influence in democratic society. The legal profession would, in their view, fill the place of the aristocracy in Europe and provide a bulwark against radical social change. In Democracy in America, Tocqueville noted that the “profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. . . . Without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained.”

This vision of lawyer as conservator of public order, if it were ever true, had collapsed by the mid-1960s. The “liberal legal network,” as Teles puts it—which includes the legal academy, the American Bar Association, government lawyers, the judiciary, and most of the nation’s big law firms—came into being as a result of the immense growth of government power during the New Deal and the Second World War. Legions of young lawyers went to work for the new government agencies that they’d helped create, and many eventually landed at law firms, where they dealt with their former agencies on behalf of private industry. They shared the view that large-scale, federal-government action would benefit society, and that anyone who disagreed with liberalism was not only wrong but un-American. The equation of liberal causes with social justice intensified during the sixties, hampering conservative efforts to attract top-quality lawyers and judges.

But by the 1970s, business leaders and religious conservatives were pushing back, advocating for strict-constructionist readings of the Constitution and the overthrow of the liberal legal elite. Alarmed by new laws restricting business behavior and the explosion of lawsuits brought by Ralph Nader and his followers against corporate America, they created a groundswell that led to the founding of what Teles calls the first-generation conservative legal organizations. But the Pacific Legal Foundation and other pioneering conservative organizations, though they took on important cases, could not fully escape the charge that they were stalking horses for business interests.

Learning from experience, the next generation of conservative legal institutions fared better. Their evolution reflected what Teles calls “a shift in power from the movement’s material base to those with primarily cultural and intellectual motivations.” In the late 1970s, Michael Horowitz, a conservative activist, circulated a report highly critical of the state of conservative legal action. Horowitz urged geographically dispersed conservatives to focus their efforts on Washington and adapt to the capital’s culture, with its formal and informal networks of congressional committees, interest groups, think tanks, and media contacts. He argued that conservatives should develop a critique of legal liberalism across a range of issues, moving away from their reliance on business support to reach out to clients that the first generation of conservative legal organizations had ignored. To staff this ambitious project, Horowitz sought like-minded university scholars. He worked to overturn the liberal ideological dominance of law schools, a key factor in liberal activism’s stranglehold on public-interest law.

Horowitz’s proposals became a blueprint for the next wave of conservative public-interest law firms, such as the Institute for Justice and the Center for Individual Rights. These second-generation organizations, based in Washington, created an intellectual framework based on acceptance of the post–New Deal legal order but dedicated to changing how the nation thought about the law; they accepted an active judiciary and believed that “conservative interests could only be protected by actively using courts to establish new or reinvigorate old rights.” So, for example, they might represent poor minority children against an entrenched school bureaucracy dominated by the Left, or want the judiciary to enforce expanded definitions of property rights.

Other institutions playing important roles were the Chicago school of economics and the Federalist Society, and Teles devotes chapters to both. The Chicago school—championed most prominently in the legal context by Richard Posner, now a judge—brought a free-market perspective into the left-leaning academy and revolutionized the way lawyers thought about the law. The Federalist Society became perhaps the most successful conservative legal organization, but it differed from the others in conducting no litigation or advocacy of its own. Instead, the society has served as a clearinghouse and network for the exchange and development of ideas, through which it has helped foster the emergence of a conservative legal elite.

Twenty-five years ago, few would have assumed that justices like Alito, Antonin Scalia, or Clarence Thomas would sit on the Supreme Court. The conservative legal movement is responsible for changing the terms of the debate and making such judicial appointments possible. But conservative organizations have still failed to match the resources and reach of their liberal rivals. Perhaps the very strategy that enabled such conservative successes has also limited it: conservative groups adopted some of the premises of judicial liberalism, pushing for activist federal courts and the use of rights language to achieve their goals. Conservative lawyers, like their liberal New Deal forbears, flocked to Washington to take posts in presidential administrations, too often leaving state legal systems at the mercy of liberals (like New York’s Eliot Spitzer). Instead of developing a truly conservative legal philosophy based on decentralization and the rights of local communities, the conservative legal movement often became merely a moderate opposition to the trend of centralized government and heavy reliance on the courts to achieve political goals. It may be left to a third generation of scholars and lawyers to resolve this tension at the heart of conservative public-interest law.

Gerald J. Russello is a lawyer and the editor of the University Bookman.

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