The Rise of the Conservative Legal Movement: The Battle for Control of the Law.

• Author: Somin, Ilya
• Position: Book review

INTRODUCTION I. THE CONSERVATIVE-LIBERTARIAN CHALLENGE TO THE LEGAL LEFT II. LESSONS FOR THE STUDY OF LEGAL CHANGE A. The Demand and Supply of Resources for Legal Change B. Limitations of Teles's Analysis III. LESSONS FOR CONSERVATIVE AND LIBERTARIAN LEGAL ACTIVISTS A. Learning from the Left B. Independence from Business Interests C. The Shortage of Follow-up Litigation CONCLUSION INTRODUCTION

Steven Teles's The Rise of the Conservative Legal Movement (1) represents the best and most thorough attempt to document the spectacular growth of conservative efforts to influence the law since the 1970s. Both scholars and legal activists have much to learn from his careful account of this important episode in legal history. Part I of this Review briefly summarizes Teles's analysis. Part II considers its lessons for scholarly understanding of legal change. Teles's most important claim is that effective institutionalization of legal change requires not only a demand for reform by voters or interest groups, but also a supply of trained advocates, public interest law firms, and judges willing and able to influence the law in the direction desired by an insurgent political movement. As Teles effectively demonstrates, public demand for legal change does not in itself generate the needed supply of institutional resources. Through his analysis of the growth of conservative and libertarian organizations such as the Federalist Society, the Institute for Justice (IJ), and the Center for Individual Rights (CIR), Teles chronicles the difficulties faced by the legal right in its attempts to create the cadre of lawyers and institutions they needed to challenge liberal dominance over the law. The successes and failures of this effort are instructive.

Part II also briefly discusses a few limitations of Teles's argument. Perhaps the most important shortcoming is his neglect of social conservatives' efforts at law reform. Most of Teles's account focuses on libertarian organizations that sought to use judicial review to limit the power of government. Social conservatives, by contrast, sought to undo judicial constraints on government power for the purpose of using the state to advance conservative ends, most notably, banning abortion and pornography. Fuller consideration of the social conservative experience is needed to test the generalizability of Teles's conclusions.

Finally, Part III shifts gears and addresses some of the lessons of Teles's account for libertarians and conservatives who wish to strengthen judicial limits on government intervention in the economy. To succeed, pro-market public interest organizations must keep their distance from business interests. In addition, Teles shows that pro-market legal activists have not done enough to promote follow-up litigation to exploit and enforce major precedential victories. On this point, as on others, legal activists of the right can learn from their left-of-center counterparts.

For the sake of full disclosure, I should mention my connections with several of the organizations Teles examines. I am a member of the Federalist Society and have served on the Executive Committee of its Federalism and Separation of Powers practice group (an unpaid position) for the last two years. I have also written several pro bono amicus briefs and served as a student law clerk for the Institute for Justice, a libertarian public interest firm that figures prominently in Teles's book. Finally, I am a professor at George Mason University School of Law, which Teles discusses because of its role in promoting libertarian-leaning law and economics scholarship in the academy. (2)

I am too young to have played much role in the origins and development of any of these organizations and therefore have no direct reputational stake in any of the points Teles makes about these historic events. Although I was asked to write this Review in part because of my role as an "insider" in some of the organizations Teles analyzes, I am in fact more of an outsider when it comes to almost all the events on which Teles focuses. Still, readers must decide for themselves whether they believe my "insider" status compromises the scholarly objectivity of this review.

1. THE CONSERVATIVE-LIBERTARIAN CHALLENGE TO THE LEGAL LEFT

   Traditional American conservative legal thought suffered a crushing blow during the Great Depression and New Deal era. The Depression seemed to discredit free market ideology, and the appointment of numerous liberal Democratic judges during the twenty-year period of Democratic political dominance from 1933 to 1953 ensured that the federal judiciary was overwhelmingly hostile to property rights and economic liberty claims. (3) During the 1950s, the Supreme Court issued several decisions eliminating much of the modest protection for economic liberties and property rights that had survived the Depression and New Deal. (4) Over the next two decades, liberal activist lawyers in the academy and the legal profession built up an extensive network of public interest organizations and supportive pro bono advocates that promoted left-of-center causes through litigation. (5) The network garnered support from sympathetic officials in government bureaucracy and an overwhelmingly liberal legal academy, which helped transmit liberal ideas about the role of law and interest students in promoting liberal legal causes. During this era, conservatives and libertarians had little in the way of a parallel legal network of their own.

   Beginning in the late 1960s, a political backlash arose against the perceived excesses of liberal jurisprudence. Indignation at "activist" liberal judges helped elect Richard Nixon and Ronald Reagan to the presidency and also aided many lesser-known conservative politicians. As Teles documents, however, conservatives found it difficult to translate electoral success into legal change. Without a cadre of elite conservative lawyers willing to move the law in their preferred direction, conservatives could not easily find judicial appointees who could reliably be counted to vote their way. Without a network of public interest groups and other litigators, they could not easily bring cases to establish conservative-leaning precedents. Finally, the dominance of liberals in the academic and intellectual worlds ensured that conservative and libertarian views of the law seemed unjust and disreputable to most legal professionals, impeding their potential acceptance among lawyers and other influential elites. (6) As Teles emphasizes, the "liberal legal network" of entrenched elites in the judiciary, academy, government bureaucracy, organized bar, and public interest law ensured that the liberal reforms could not easily be challenged or reversed.

   To counter liberal dominance in the legal system, conservafives and libertarians sought to build up their own alternative network of lawyers, activists, and academics. Teles's book is the most complete account of this effort to date. In the field of public interest law, right-of-center activists set up such organizations as the Institute for Justice and the Center for Individual Rights, each of which went on to win important victories in state and federal courts. (7) The Federalist Society, established in 1982, was intended to influence the battle of ideas in the academic world and the legal profession. (8) Both the Society and other conservative and libertarian organizations sought to increase the presence of right-of-center speakers and scholars in the academy, providing scholarships and networking opportunities for young conservatives and libertarians seeking to pursue academic careers. Libertarian-leaning law and economics scholars established new research centers intended to challenge traditional liberal legal thought with interdisciplinary scholarship. (9)

   Despite stereotypes of a "vast right-wing conspiracy," Teles shows that many of these efforts were started by individual "organizational entrepreneurs" rather than a centralized network. For...