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The Successes and Failures of Political Conservatism in Legal Academia and Practice: |
By RODGER CITRON |
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| Thursday, Jun. 12, 2008 |
A recurring theme in this year’s 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’s outstanding recent article dissecting the current state of different strands of conservatism in The New Yorker; the string cite includes Fareed Zakaria’s column on the intellectual irrelevance of conservatism in Newsweek in late February.)
As the Obama and McCain campaigns inexorably march on, Steven Teles’s absorbing and insightful new book, The Rise of the Conservative Legal Movement, 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.
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 – 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 – and its failures, such as the struggles of a number of conservative public interest legal organizations in the 1970s.
Electoral Success Alone Is Not Sufficient: A Conservative President Fails to Transform a Liberal Supreme Court
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 “president has all but recaptured the institution from the Left” and that “the 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.”
Buchanan’s prediction – one that was made by many others – 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 Roe v. Wade, holding that the Constitution protected a woman’s right to an abortion.
The persistence of legal liberalism proved confounding to conservatives, who won at the ballot box but could not dislodge the prevailing principles of law – 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.
Perhaps equally maddening, from conservatives’ 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’s leading law schools – which produced many of the very attorneys who went on to aggressively litigate, draft legislation, and lobby for that liberal conception of justice.
The Responses of the Conservative Legal Movement to Continuing Legal Liberalism
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’s 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.
Teles surveys the fortunes of a number of conservative public interest organizations. Many of the “first generation” 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).
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’s 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.
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’s 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 – not this one. Ultimately, MSLF abandoned the lawsuit.
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.
The Success of the Federalist Society
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’s Society decision to maintain a limited focus for its activities as an organization.
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.
Essential to the Federalist Society’s 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.
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’s 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.
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, “[p]artially as a result of the Society’s 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’s understanding of the rule of law as something that transcends the ideological conflicts of the day.”
Law and Economics Storms the Academy
At first blush, Teles seems to stray from his main topic – the conservative legal movement – 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’ 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.
By now, the initial academic resistance to law and economics – which draws upon economics to explain the law – 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’s initial unwavering embrace law and economics was persuasive, it was responded to by professors at the leading law schools – 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.
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 – 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.
As extraordinary an intellect as Posner is, Manne’s accomplishments seem to be more significant for Teles, because they involve not only intellectual but also organizational challenges. Indeed, Teles’s most enduring insight lies in his emphasis on the importance of organizations and networks in the development and diffusion of legal ideas.
The Next Stage: If Obama Is Elected, Will He Transform the Federal Courts?
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 – 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’ age and health, it seems that if a President Obama were to be appointing justices, he would simply be replacing liberals with liberals.)
If so, perhaps Teles eventually will examine the politics of that dynamic. With The Rise of the Conservative Legal Movement, he certainly has set the stage for such an effort.
Rodger D. Citron is an Assistant Professor of Law at Touro Law Center in Central Islip, New York.