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

• Author: Avery, Michael
• Position: Book review

It might be tempting for political liberals, who would like to rely upon the United States Supreme Court to defend individual liberties and to sustain progressive legislation, to conclude that the sky has fallen. It started falling, of course, even before the tenure of William Rehnquist as Chief Justice. But with the appointment of John Roberts as Chief Justice and Samuel Alito as an Associate Justice, the transformation of the Court is accelerating. And the sky? Well, one can almost touch it. The modern Court can now be relied upon to strive to protect business interests against legislation designed to protect workers, consumers, and the environment; to halt the judicial expansion of personal liberty interests while expanding judicial protection of property interests; to interpret a "colorblind" Constitution by rolling back affirmative action and school-desegregation plans; to restrict access to courts by upping the ante on pleading requirements and statutes of limitation; and to weaken the boundaries between church and state. On these and many other issues, the Roberts Court's advancement of the conservative political agenda is well underway.

A few examples suffice to illustrate the ideological content of the Roberts Court's jurisprudence. Professor Jeffrey Rosen describes the current direction of the Court as "exceptionally good for American business." (2) In Chief Justice Roberts's first two terms, the Court heard seven antitrust cases, compared to less than one per year during the Rehnquist Court. (3) The Court resolved them all in favor of the corporate defendants and in the process overruled an almost 100-year-old precedent holding minimum price restraints to be per se anticompetitive. (4) Consumers lost when the Court held that regulatory action by a federal agency preempted a state tort action against an allegedly defective medical product in one case, and in another when the Court afforded insurance companies a good-faith defense for a mistaken reading of a regulatory statute. (5) The Court has continued to protect corporate defendants against large punitive damage awards. (6) Environmental claims have had mixed success, with parties favoring regulation winning some procedural victories, but losing on the merits in other cases. (7) In a sharp departure from a decision just seven years earlier, the Court upheld a law criminalizing abortion by means of intact dilation and evacuation, despite the fact that the statute made no exception for the need to protect the health of the mother. (8) Important decisions on the Fourth Amendment have run against criminal defendants. (9) The Court held voluntarily adopted school integration efforts in Seattle, Washington, and Louisville, Kentucky, to be unconstitutional, over a passionate dissent by the moderate Justices. (10) In a failure to follow what was arguably a controlling precedent, the Court held that taxpayers had no standing to bring an Establishment Clause challenge to a federal agency's use of federal money to fund conferences to promote the President's faith-based initiatives. (11)

On one level, the Court's turn to the right appears to be a simple consequence of the fact that Republican presidents appointed all but two of the sitting Justices. (12) But the story of how conservatives have built a legal movement that has successfully challenged the hegemony of liberal legal thought is far more complicated and sophisticated than that. This story is told in great detail in Steven M. Teles's book, The Rise of the Conservative Legal Movement. (13)

Teles begins by explaining his theories of how political power is exercised and how political change takes place. In his view, over the past half-century there has been a decline in the power of political parties and elections to make change. The "increasing importance of ideas and professional power" requires "nonelectoral mobilization" to bring about change. (14) Policymaking is controlled by "networks that cut across agencies, levels of government, and the state-society divide, rather than by political parties." (15) This explains why in the 1970s, even though the Republicans had captured the presidency through Richard Nixon, and Nixon had made four appointments to the Supreme Court, the law did not change as much as conservatives had hoped. The liberals still controlled "a much more impressive set of resources: elite law schools, a large chunk of the organized bar, a vast network of public interest lawyers, and the still-powerful liberal understanding of rights." (16) The politics of law are "acutely sensitive to the increasing significance of ideas, information, networks, issue framing, and agenda control in American politics." (17)

A principal contribution of Teles's book is his identification of the problems conservatives faced in mobilizing against liberal control of crucial legal networks and institutions, and his characterization of these problems as fundamentally organizational. (18) He explains, first theoretically and then in detailed factual accounts, how the conservative legal movement challenged the entrenched liberal legal polity through the development of an "alternative governing coalition." (19) Of necessity, writes Teles, such a coalition must comprise "intellectual, network, and political entrepreneurs, and the patrons that support them." (20) Teles devotes most of the book to a description and analysis of the entrepreneurs and patrons responsible for the development of conservative public-interest legal institutions, the law and economics movement, the Federalist Society, and the implementation of their goals in law schools, the bar, the courts, and the government.

Before turning his attention to the conservative legal movement, however, Teles describes how the liberal legal network developed as a powerhouse of political, legal, and social influence. The foundation of liberal dominance was the New Deal. The preeminence of liberal thought and action grew as a consequence of the work of the NAACP Legal and Defense Fund, the ACLU, the National Lawyers Guild, the Supreme Court's decision in Gideon v. Wainwright, (21) the subsequent explosion in the numbers of legal-services lawyers and programs, an expanded interest on the part of the American Bar Association in legal-aid programs, the growth of clinical education in law schools, the development of liberal public interest law, and crucial support from the Ford Foundation for many of these initiatives. Furthermore, in the late sixties and early seventies there was enormous growth in the size of law faculties in the United States, just as "the law students who would fill those positions were moving decisively to the left." (22) The new generation of liberal law professors "sought to legitimate the expanded role of the judiciary ushered in by the Warren Court," as compared with the previous generation who had "cut their teeth on legal realism and judicial restraint." (23)

A centralization of policymaking in Washington, D.C. advantaged the liberal public-interest organizations in the capital that "networked into its web of agencies, courts, media, congressional subcommittees, and research organizations." (24) As a result, the liberal legal...