Why the right embraced rights.

Author:Sawyer, Logan E., III
Position::Book review
 
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THE OTHER RIGHTS REVOLUTION: CONSERVATIVE LAWYERS AND THE REMAKING OF AMERICAN GOVERNMENT. JEFFERSON DECKER. OXFORD UNIVERSITY PRESS (2016)

INTRODUCTION

Justice Scalia's untimely death prompted an outpouring of popular and academic comment on his remarkable contributions, both to the law and to the conservative movement in American politics. Newspaper obituaries, magazines, and special editions of scholarly journals analyzed the Justice's contribution to reshaping theories of constitutional and statutory interpretation, changing central doctrines of constitutional law, and altering norms of Supreme Court oral advocacy and opinion writing. (1) They also regularly emphasized how both his votes and his voice helped advance conservative causes. (2)

That recognition is undoubtedly deserved, but the credit--or blame, depending on one's perspective--ought to be shared, as the Justice himself undoubtedly would have recognized. (3) As a Supreme Court Justice, Scalia's voice and vote had considerable influence on American law and politics. (4) But, like all judges, that influence depended on the opportunity to hear new arguments and decide new cases. And many of the arguments and cases most important to Scalia's legacy were produced by a loose but effective network of conservative litigators, lower court judges, law clerks, and academics. (5) Consider that United States v. Lopez, (6) Citizens United v. FEC, (7) District of Columbia v. Heller, (8) and NIFB v. Sebelins (9) were all cases supported by conservative public interest law firms that deployed arguments developed by academics associated with the Federalist Society. (10)

Remarkably, when Scalia entered public service in 1971, (11) that network of conservative lawyers did not exist. At that time, public interest law firms were nearly universally dedicated to advancing liberal or progressive policies. (12) There was no Federalist Society. (13) Many of the ideas that are today associated with the conservative movement--like law and economics and originalism--had no meaningful support in legal academia. (14) By 2015, however, the landscape had been transformed. A remarkable array of public interest law firms pursued conservative goals, including the Pacific Legal Foundation, the Capital Legal Foundation, and the Institute for Justice, to name only a few. (15) In fact, by the 1990s, conservative public interest firms were filing more Supreme Court amicus briefs than their liberal and progressive counterparts. (16) The academy was different as well. With the support of the Olin Foundation and other conservative nonprofit groups, it became common for scholars to use economic analysis to justify conservative policy goals. (17) Academics with similar support used textualist and originalist arguments to the same effect. (18) All of those efforts were loosely coordinated by a network of conservative lawyers centered primarily, but not exclusively, on the Federalist Society. (19) In multiple high profile cases, including those listed above, Federalist Society academics generated theories that were presented in court by Federalist Society litigators, analyzed by Federalist Society law clerks, and adopted by Federalist Society judges and Justices. (20) By 2005, that network had developed enough political muscle to sink President Bush's nomination of Harriet Miers to the Supreme Court and help push one of its own, Justice Alito, onto the Court. (21)

This network, commonly called the conservative legal movement, has recently received the sustained attention of scholars in a variety of fields. Political scientists, (22) historians, (23) and academic lawyers (24) have sought to explain how this network has advanced conservative policies in the law so successfully. Jefferson Decker's The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (25) makes an original and important contribution to this literature by asking a new question. Rather than asking how a relatively small number of lawyers helped conservatives alter legal and constitutional norms, as have most scholars, he asked how the constitutional and legal norms developed by that network went on to alter the political ideology of conservatives.

Conservatives in the 1970s and 80s, Decker argues, believed in the effective use of government authority when exercised by democratically elected branches, but were dubious about judicial policy-making. In particular, they opposed the legal and constitutional "rights revolution" that allowed liberal and progressive public interest lawyers to push courts to extend judicial authority over contested social and economic issues. (26) Things are different today. Conservative lawyers, politicians, activists, and voters have made "rights talk" and an associated suspicion of government authority core tenants of contemporary conservatism. (27) Decker's most striking claim is that this transition was led by lawyers. He thus suggests that the recent scholarship on the conservative legal movement may have missed its most important impact: its redefinition of what it means to be conservative.

Decker makes this claim as a historian. That is, he emphasizes attention to archival evidence and narrative coherence over theory and commentary. But Scalia's passing invites us to consider how his insights might be both generalized and extended. This review turns to those questions after it summarizes Decker's arguments in Section I. Section II identifies some of the limits of his argument, and places his claims in context of our existing understanding of the conservative legal movement. Sec-Section III supports Decker's insight by explaining how legal arguments can alter not just what political movements think is possible, but what they think is desirable. To elucidate that explanation, Section III examines how the contemporary conservative movement has been shaped by the legal campaign against the Affordable Care Act. (28) Through their efforts, conservative lawyers transformed the debate over the ACA from one that emphasized policy consequences to one that emphasized liberty and individual rights. By doing so, they both inspired and legitimated the Tea Party movement, which, in turn helped transform the contemporary Republican Party. Section IV asserts that it is not just Decker's argument, but his broader approach that ought to be extended. By tying Decker's work to a broader set of studies it calls for more attention to the role that lawyers have played in defining and re-defining conservatism. That greater focus on the influence of lawyers is particularly needed today, as convulsions in contemporary politics offer new opportunities to define conservatism for the next generation. Lawyers need to know how much influence they have had in the past so they can recognize how many responsibilities they have in the present.

  1. THE OTHER RIGHTS REVOLUTION

    Decker organizes his argument as historical narrative. After an introduction outlining his argument, he turns to the origins of the contemporary network of conservative public interest law firms. Those firms were not started, as one might expect today, to enlist the judiciary in the fight against excessive government regulation. Rather, they hoped to do the opposite: to free government from such legal entanglements.

    Business leaders and other conservatives were concerned that the aggressive enforcement of new rights by liberal and progressive lawyers was interfering with orderly, democratic government. Their concern grew from the explosion of new rights of actions created by Lyndon Johnson's Great Society programs, (29) which combined with looser standing rules (30) and the explosion of fee shifting statutes to encourage liberal and progressive public interest lawyers and law firms (31)--including consumer advocates like Ralph Nader and environmental organizations like the Sierra Club--to bring suit against the government in hopes of advancing their preferred policies. (32)

    Conservatives in general, and the business community in particular, responded by funding and organizing their own lawyers to fight back. Future Supreme Court Justice Lewis Powell, acting as a consultant for the Chamber of Commerce, urged business leaders to learn from the success of liberal public interest litigation. "Other organizations and groups have been far more astute in exploiting judicial action than American business," he wrote. (33) This was, Powell wrote, "a vast area of opportunity for the Chamber." (34)

    The result of those efforts was the early conservative public interest firms, like the Pacific Legal Foundation and the Mountain States Legal Foundation, which looked for opportunities to defend government authority from interference from the liberal legal network. As the President of the PLF complained to his board of directors in 1973: "Faced with the dilemma of countering numerous lawsuits for temporary restraining orders, injunctions and damages, public attorneys have become hopelessly outmanned." (35) Without an effective conservative legal counter-mobilization, he continued, "governmental functions may well be without adequate defense." (36)

    Decker then turns to the lawyers who formed that counter-mobilization and the lessons they drew from their experiences, first in the American West, and then in the Reagan Administration. At a time when most political and legal conservatives were calling for judicial deference that would help re-establish "law and order" and protect the interests of the "silent majority," those conservative public interest firms, working primarily in the West, began to see how courts, litigation, and rights claims could advance conservative interests. (37) The Pacific Legal Foundation, for example, quickly learned it could use the tools liberal public interest lawyers had developed to protect property owners. (38) It used the same environmental statutes that it had formerly opposed, for instance, as a way to slow or stop expensive...

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