{"id":53914,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-successes-and-failures-of-political-conservatism-in-legal-academia-and-practice.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-successes-and-failures-of-political-conservatism-in-legal-academia-and-practice","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-successes-and-failures-of-political-conservatism-in-legal-academia-and-practice.html","title":{"rendered":"The Successes and Failures of Political Conservatism in Legal Academia and Practice"},"content":{"rendered":"\n<div class=\"wp-container-core-columns-is-layout-9d6595d7  fl-block-columns fl-sectionWithSidebar fl-container fl-flex fl-flex-wrap fl-gap30\">\n    \n    <div class=\"fl-page-articles   fl-block-column fl-section-main fl-section-main-full-width\">\n        <div class=\"yui-g\" id=\"leftcol-module\">\n      <!-- Right Line of Links Section -->\n      <!-- BEGIN PICTURE INSERTION -->\n      \n      <!-- BEGIN TITLE AND AUTHOR INSERTION -->\n      <table>\n        <tr>\n\n          <td width=\"100\" rowspan=\"3\" class=\"wiauthor\"><img decoding=\"async\" src=\"https://supreme.findlaw.com/static/c/images\/image\/upload\/ability-legal\/wp-prod\/legal-commentary-images-illustrations-conservlegalmvmt.png\" border=\"0\"><\/td>\n          <td class=\"wititle\"><h1>The Successes and Failures of Political Conservatism in Legal Academia and Practice:<br><br>\n          <br><span class=\"subtitle\">A Review of Steven Teles&#8217;s <i>The Rise of the Conservative Legal Movement<\/i><\/span><\/h1><\/td>\n        <\/tr>\n        <tr>\n          <td class=\"wiauthor\"><a href=\"#bio\" class=\"graybold\"><h2>By RODGER CITRON<\/h2> <br><\/a><\/td>\n        <\/tr>\n        <tr>\n          <td class=\"widate\">Thursday, Jun. 12, 2008<\/td>\n\n        <\/tr>\n      <\/table>\n<span class=\"smalltext\">\n<p>A recurring theme in this year\u2019s presidential election is  whether or not conservatism has exhausted itself as a political movement and an  intellectual force in contemporary American society. (Exhibit A is George Packer\u2019s outstanding recent  article dissecting the current state of different strands of conservatism in <i>The New Yorker<\/i>; the string cite includes  Fareed Zakaria\u2019s column on the intellectual irrelevance of conservatism in <i>Newsweek<\/i> in late February.)<\/p> \n<p> As the  Obama and McCain campaigns inexorably march on, Steven Teles\u2019s absorbing and  insightful new book, <i>The Rise of the  Conservative Legal Movement<\/i>, arrives at an interesting time. Teles explores the development and  dissemination of conservative ideas in the law since the 1970s. Although Teles does not focus on the  electoral politics of the last four decades, his book contributes to a deeper  understanding of the relationship between politics and the efforts by  conservatives to reshape the law during this period. <\/p>\n\n<!-- START TABLE FOR RELATED -->\n<div id=\"writthreetwenty\"><script language=\"Javascript\">dart_call(\"300x250\", \"ptile=2\", 0);<\/script>\n<\/div>\n<!-- END TABLE FOR RELATED -->\n<p>As Teles demonstrates, ideas alone are  not enough to influence the law and legal culture in any meaningful way; rather,  an institutional infrastructure is necessary for new ideas to secure a place in  the law and culture. This is seen in  both the successes of the conservative legal movement \u2013 perhaps most notably in  the emergence of the Federalist Society as a source of conservative personnel  for Republican administrations after 1980 and, more importantly, the federal  bench \u2013 and its failures, such as the struggles of a number of conservative  public interest legal organizations in the 1970s. <\/p>\n<\/span>\n<p><strong>Electoral Success Alone  Is Not Sufficient: A Conservative  President Fails to Transform a Liberal Supreme Court<\/strong><\/p>\n<p> Teles begins  his story in 1972, with the sweeping re-election of Richard Nixon. In his first term, Nixon had replaced the liberal  Chief Justice Earl Warren with the conservative Warren Burger and also had appointed  three other justices to the Supreme Court.  No wonder, then, that in a memo to Nixon about the Court, Patrick  Buchanan, then a young White House aide, expressed his confidence that the  \u201cpresident has all but recaptured the institution from the Left\u201d and that \u201cthe  next four years should see this second branch of government become an ally and  defender of the values and principles in which the President and his  constituency believe.\u201d <\/p>\n<p> Buchanan\u2019s  prediction \u2013 one that was made by many others \u2013 turned out to be incorrect, as  many of the legal principles established by the Warren Court persisted. In fact, less than three months after  Buchanan wrote his memo, the Supreme Court issued its decision in <i>Roe  v. Wade<\/i>, holding that the Constitution protected a woman\u2019s right to  an abortion. <br>\n  <br>\n  The persistence of legal liberalism  proved confounding to conservatives, who won at the ballot box but could not  dislodge the prevailing principles of law \u2013 which had established rights such  as the rights to privacy and reproductive freedom, provided support for  substantial governmental efforts to promote racial equality, and offered  substantial legal protection for the environment. <\/p>\n<p>Perhaps equally maddening, from  conservatives\u2019 perspective, was that these principles, though ultimately  embraced by the federal courts (including the Supreme Court), were also significantly  the work of an elite network of liberal public interest organizations in Washington, D.C. In addition, these principles featured  prominently in what was taught at the nation\u2019s leading law schools \u2013 which  produced many of the very attorneys who went on to aggressively litigate, draft  legislation, and lobby for that liberal conception of justice. <\/p>\n<p><strong>The Responses of the  Conservative Legal Movement to Continuing Legal Liberalism<\/strong><br>\n  <br>\n   There were  a number of conservative responses to the continuing prevalence of legal  liberalism. Teles divides the responses  into two categories: The first was the  formation of conservative public interest organizations, which eventually  became effective counterweights to organizations like Ralph Nader\u2019s Public  Citizen and other liberal public interest groups that had emerged from the  political activism of the 1960s. The  second, which I will discuss briefly below, was the promotion of the doctrines  of law and economics in the legal academy. <\/p>\n<p> Teles  surveys the fortunes of a number of conservative public interest  organizations. Many of the \u201cfirst  generation\u201d groups struggled. This was  not due to a lack of funds, because there were a number of corporations willing  to serve as patrons. Paradoxically,  however, the perils of having too close of a relationship with business were  illustrated by the experience of one such group: the Mountain States Legal  Foundation (MSLF).<\/p>\n<p> Teles shows  how MSLF, founded and supported by Joseph Coors and led in its early years by  James Watt (who left in 1981 to become President Reagan\u2019s Secretary of the  Interior), could not develop an effective legal strategy because of the  tensions between its free-market ideology and the beliefs of its more pragmatic  business supporters. <\/p>\n<p>Notably, MSLF had to drop a lawsuit  in the early 1980s challenging the grant of an exclusive cable franchise to a Denver businessman. An MSLF lawyer at the time viewed the lawsuit  as an ideal case to promote the principle of free markets in the emerging cable  television industry. However, MSLF\u2019s  board of directors, dominated by businessmen, disagreed. A contingent from Colorado supported the grant regardless of  the free speech and antitrust issues raised and felt that promoting free market  principles was an ideal to be pursued in some other case \u2013 not this one. Ultimately, MSLF abandoned the lawsuit. <\/p>\n<p>Subsequent conservative public  interest organizations, such as the Institute for Justice, took steps to  insulate their organizations from the overt influence of businesspersons who might  wish to compromise economic principles for immediate financial benefit. <\/p>\n<p><strong>The Success of the Federalist  Society <\/strong><\/p>\n<p> One  conservative organization that has managed to avoid the kind of internal  conflicts experienced at MSFL is the Federalist Society. This is due to the Federalist\u2019s Society decision  to maintain a limited focus for its activities as an organization. <br>\n   <br>\n   Given its  prominence in the administrations of Presidents Reagan and Bushes, it may seem  difficult to believe that the Federalist Society actually was not started with  objective of running the free world.  Nevertheless, in his detailed history of the organization, Teles reminds  the reader that for conservatives, the landscape in law schools in the early  1980s was barren, and the Federalist Society capitalized on the desire of  conservative students for a forum in which to express their views. <\/p>\n<p> Essential  to the Federalist Society\u2019s success was an emphasis on debate and a conscious  effort to avoid taking on ventures that could lead to internal divisions. Because the leadership of the organization  still includes some of its founding members, those organizational principles  continue to be followed today.<\/p>\n<p> Teles  distinguishes the actions of the Federalist Society itself from the actions of  its individual members. Nevertheless, he  describes in detail the influence that some of the Society\u2019s members have  wielded in the Republican administrations of the last three decades, especially  with respect to the nomination and appointment of federal judges. Perhaps the most important functions of the  Society have been to create professional and social networks and to establish  an easily recognizable signal by which one may recognize a fellow traveler in  the conservative movement. <\/p>\n<p> The  Federalist Society has consistently made efforts to nominate like-minded  conservatives to the bench. In addition,  following the unsuccessful nomination of conservative judge Robert Bork to the  Supreme Court in 1987, it also has striven to discredit the American Bar  Association as afflicted by a liberal bias.  Together, these efforts by the Federalists have further politicized the  federal courts. As Teles notes,  \u201c[p]artially as a result of the Society\u2019s challenge to the liberal legal  network, the law has become wracked by seemingly unending ideological conflict,  making it even harder to move toward the Society\u2019s understanding of the rule of  law as something that transcends the ideological conflicts of the day.\u201d <\/p>\n<p><strong>Law and Economics  Storms the Academy<\/strong><\/p>\n<p> At first  blush, Teles seems to stray from his main topic \u2013 the conservative legal  movement \u2013 when he shifts away from the establishment and experience of a  number of conservative political organizations to examine the rise of law and  economics in the legal academy. After all,  the organizations\u2019 impact was much more focused and direct that that of the  academy. However, as Teles explains, the academy did play an important role,  for conservatives made a substantial effort to influence the law schools,  primarily through efforts to legitimate the teaching of the doctrine of law and  economics. <\/p>\n<p>By now, the initial academic  resistance to law and economics \u2013 which draws upon economics to explain the law  \u2013 is well-known. In their efforts to  overcome that resistance, conservatives were led by Richard Posner, the  prolific federal court of appeals judge who was an academic before his  appointment to the bench. Regardless of  whether Posner\u2019s initial unwavering embrace law and economics was persuasive,  it was responded to by professors at the leading law schools \u2013 and the lively  debate that ensued helped to bring economic principles into the classroom. A professor might not endorse law and  economics, but increasingly, he or she felt compelled to teach the approach, if  only as one school of thought.<\/p>\n<p> According to  Teles, though Posner was most famous for spreading the gospel of law and  economics, the lesser-known Henry Manne was just as influential. Manne was not only a scholar but also a  policy entrepreneur. Manne organized  institutes for law professors and programs for judges to learn economics \u2013 thus  demystifying economics and promoting its application to legal principles in the  classroom and the courts. Manne also  succeeded in launching a law and economics center at a law school; it currently  resides at George   Mason University,  where he was the dean. <\/p>\n<p> As  extraordinary an intellect as Posner is, Manne\u2019s accomplishments seem to be  more significant for Teles, because they involve not only intellectual but also  organizational challenges. Indeed,  Teles\u2019s most enduring insight lies in his emphasis on the importance of  organizations and networks in the development and diffusion of legal  ideas. <\/p>\n<p><strong>The Next Stage: If Obama Is Elected, Will He  Transform the Federal Courts?<\/strong><\/p>\n<p>Teles begins his book with  the re-election of Richard Nixon and the entrenchment of legal liberalism. As the election approaches, it is entirely  possible that the day after November 4, 2008, conservatives may face the essentially  opposite situation \u2013 pitting a Democratic president against a host of  well-organized conservative organizations, and raising the question whether a  President can ever remake the federal courts in his own image. (Lower federal  court appointments may prove more significant because, based on the Justices\u2019  age and health, it seems that if a President Obama were to be appointing  justices, he would simply be replacing liberals with liberals.) <\/p>\n<p>If so, perhaps Teles eventually will examine the politics of that dynamic.\u00a0 With <i>The Rise of the Conservative Legal Movement<\/i>, he certainly has set the stage for such an effort.\u00a0 <\/p>\n<hr size=\"1\">\n<p class=\"authorfoot\">\n\n<!-- BEGIN AUTHORS FOOTNOTE -->\n<a name=\"bio\"><\/a><\/p>\nRodger D. Citron is an  Assistant Professor of Law at Touro Law Center in Central Islip, New York.\n<p class=\"authorfoot\"><br>\n    <br>\n  \n<\/p>\n    <\/div><div class=\"was-this-helpful\">\n    <div\n            class=\"was-this-helpful__question-container\"\n            aria-labelledby=\"was-this-helpful__question\"\n            role=\"group\"\n    >\n        <span\n                id=\"was-this-helpful__question\"\n                class=\"was-this-helpful__question fl-text-lg-bold\"\n        >Was this helpful?<\/span>\n        <button\n                class=\"was-this-helpful__button fl-text-sm\"\n                aria-label=\"Yes\"\n                value=\"yes\"\n        >\n            <span class=\"was-this-helpful__button-text fl-text-bold\">Yes<\/span>\n            <i class=\"was-this-helpful__button-icon\">\n                <svg width=\"22\" height=\"22\" viewBox=\"0 0 22 22\" fill=\"none\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\">\n                    <g id=\"thumbs-up\" 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