THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT

Vol. 18 No. 7 (July, 2008) pp.632-636

THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW, by Steven M. Teles. Princeton: Princeton University Press, 2008. 385pp. Cloth. $35.00/£19.95. ISBN: 9780691122083.

Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: roy [at] politics.tamu.edu.

Sure, it was a coincidence but the timing could not have been better. The morning before I sat down to write this review, I received a solicitation letter from the Federalist Society asking me for a donation. The letter signed by Eugene B. Meyer, the organization’s president, pointedly quoted Steven Teles’ comment from his book that the “Federalist Society represents, without a doubt, the most vigorous, durable, and well-ordered organization to emerge from . . . modern conservatism’s political strategy.”

When Teles set out to document the stumbles, turning points, and successes of the conservative counter-mobilization against legal liberalism, his “first real breakthrough” came after Meyer let him loose to rummage through the Society’s internal documents. Other entrepreneurs in the conservative legal movement like Henry Manne, William “Chip” Mellor, and Clint Bolick fully cooperated with Teles, answering his questions and providing him with background documents. Equally important, pivotal financial patrons of the movement, like the Olin Foundation, followed suit. Finally, Teles decided to organize his research around the themes of strategy and entrepreneurship which he credits to conversations with Stuart Butler of the Heritage Foundation. No published study about the conservative legal movement of which I am aware can compete with the information, detail, perspectives, and stories that Teles has packed into his book.

Teles’ major stories pivot around the formation and evolution of the Federalist Society, the emergence and institutionalization of law and economics as part of law school curriculums, the Center for Individual Rights, and the Institute for Justice. Nested within these narratives are vignettes of other players and organizations that illustrate how patrons and entrepreneurs learned from their mistakes and redirected their strategies. Teles quickly alerts his readers that he not concerned with organizations like the American Center for Law and Justice that have been involved in religious or social conservative litigation. Nor is he interested in the thicket of conservative think tanks that sprouted up during the past three decades or in the proliferation of litigating groups with traditional pro-business agendas or interests in tort reform. The price of Teles’ tight focus, however, is easily off-set by the many benefits generated by his in-depth discussions.

The idea for a conservative legal counter-mobilization first surfaced in Lewis Powell’s confidential memorandum to the US Chamber of Commerce in 1971 shortly before Nixon nominated him to the Supreme Court. (Powell’s memo can be found at [*633] www.pbs.org/wnet/supremecourt/personality/print/sources_document13.html). Entitled “Attack of [sic] the American Free Enterprise System,” Powell argued America’s economic system was under “broad attack.” The “most disquieting” attacks were not those made by the usual left-wing or socialist suspects but those from “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” Powell urged the Chamber to confront the criticism especially in universities and colleges (including a “balancing of faculties”) and redirect the public agenda by creating incentives for “independent scholars who believe in the system” to publish more often and more widely. In a very real sense, Powell’s ideas foreshadowed Manne’s campaign to create law and economics centers in law schools and the Olin Foundation’s initiatives aimed at the elite schools as well as the network of conservative faculty and students created by the Federalist Society.

In a section called a “Neglected Opportunity in the Courts,” Powell cautioned that liberal and far left groups had been “far more astute” in recognizing the “judiciary may be the most important instrument for social, economic, and political change.” This could be a “vast area of opportunity” for the Chamber and the soon-to-be associate justice recommended that it hire “highly competent” staff attorneys to file amicus briefs in the Supreme Court or under special circumstances retain “lawyers of national standing and reputation” to participate in Chamber-sponsored law suits. The American Civil Liberties Union, civil rights groups, and liberal public interest law outfits like those created by Ralph Nader, offered off-the-shelf templates that conservatives could use to organize their counter-mobilization. As Teles explains, Powell implied that the fundamental problem was an imbalance in the interests appearing in courtrooms and that it could be righted by recruiting pro-business if not conservative “repeat players” and by a revival of “judicial restraint” on the bench.

Things did not play out as simply as Powell intimated. Following the formation of the Pacific Legal Foundation in 1973 with the support from the California Chamber of Commerce, several other regional foundations were soon created under the auspices of the National Legal Center for the Public Interest (NLCPI). This network was organized geographically, not functionally, and held together by interlocking directorships. The result was “organizational turmoil” because as one insider told Teles “NLCPI had all the structural flaws of the Articles of Confederation” (p.63). Equally telling, the emphasis on filing amicus briefs displaced coherent litigation strategies and put the foundations on fund-raising treadmills. Most damning of all for Powell’s business-led strategy were unexpected tensions between business interests and conservative ideology. As Adam Smith cautioned long ago, business interests are not synonymous with the public interest however it is defined.

Teles’ cameo study of the Mountain States Legal Foundation illustrates the point. With reliable funding from Joseph Coors, a long-time patron of right-wing causes, effective leadership in the early years by James Watts who later became President Reagan’s Interior [*634] Secretary, and a shared sense of grievance arising from the “Sagebrush Rebellion” in the Western states over the control of federal lands, the Mountain States Legal Foundation had several built-in advantages. Nevertheless it faltered because its business allies expected returns on their “investments” and the foundation often filed amicus briefs in response to particular contributions or to encourage new ones. Matters came to a head when the foundation challenged on First Amendment grounds Denver’s grant of an exclusive cable television franchise to a local businessman, a grant widely supported by the Mile High City’s business community. As an insider explained to Teles, the foundation’s suit “gored very powerful interests there, well connected to the Republican Party . . . Joe Coors resigned from our board [saying] . . . ’I founded MSLF . . . to take on the Sierra Club, not to do this sort of thing’” (p.65).

Soul-searching about the strategy behind the first generation of public interest firms began in the late 1970s when Michael Horowitz (subsequently chief counsel of the Office of Management and Budget during the first Reagan administration) submitted a highly critical report to the Scaife Foundation. The Horowitz Report redefined the goals of the legal counter-mobilization. Litigation alone could not dislodge legal liberalism. Ties to business interests tethered conservative public interest firms and held them back from taking the moral high ground. Amicus briefs were “pufferies intended for naïve audiences of donors and not truly doing meaningful work” (p.71). The aversion to basing organizations in Washington, D.C. had to be jettisoned in order to confront liberalism on its own turf. Most important of all, the movement needed to redefine itself along clear, consistent libertarian lines with long-term strategies that would appeal to underdogs caught up in unresponsive legal institutions like black beauticians struggling under state regulations or lower middle class whites whose houses were threatened by eminent domain. Conservatives had to become idealistic “good guys” limiting government and empowering civil society.

The Horowitz Report doused cold water on patron enthusiasm for funding conservative public interest law firms but in time the foundations used the report to restructure how these firms operated Two of these second generation firms are the subject of a separate chapter in which Teles compares the Center for Individual Rights (CIR), best known for its battles against affirmative action policies at the University of Texas and University of Michigan, and the Institute for Justice (IJ) whose fame soared after it turned defeat in KELO v. CITY OF NEW LONDON into a public policy success. While the two firms differ significantly in many ways, they share important similarities. For one thing, judicial activism no longer is a dirty word. Instead both firms see judicial activism as a means of reviving old rights to protect the conservative goal of limited government; property rights and eminent domain offer just one example. Clint Bolick (2007), co-founder of the Institute for Justice, recently argued in favor of judicial activism in a new book published by the libertarian Cato Institute. The firms, seeing the value in an activist bench, are accordingly more strategic in the cases they select and [*635] keep a steady eye on whether a case has the potential to change the public policy agenda or the law.

Horowitz, like Powell, stressed that a “key site” to contest legal liberalism was the university. In three chapters, Teles traces the winding, upward path of the law and economics movement and the seemingly inexorable growth of the Federalist Society. The law and economics story has two parts. The first deals with constructing the “mother ship” at the University of Chicago and the travails of Henry Manne to build law and economic centers at other universities and his final success at George Mason University.

Chicago legitimized law and economics. The JOURNAL OF LAW AND ECONOMICS, the sub-field’s first journal, started there and was later edited by Ronald Coase who won a Nobel Prize for his work. Chicago’s highly influential Anti-Trust Project provided fellowships supported by the Volker Fund, attracted law professors like Robert Bork, and revolutionized the field. Richard Posner with impeccable establishment credentials (Harvard Law and former Supreme Court clerk for Justice William Brennan) wrote ECONOMIC ANALYSIS OF LAW (published in 1973 and now in its seventh edition) in which he challenged myriad shibboleths in traditional legal research. In the meantime, Manne spread the gospel by pushing for new centers at other universities, aggressively marketed law and economics with help from the Liberty Fund by holding regular conferences that identified ambitious scholars and brought them into the conservative fold, and through the Economics Institute for Federal Judges introduced numerous judges to the fundamentals of micro-economics.

The second part of the story focuses on the Olin Foundation’s strategic deployment of its largesse aimed directly at faculty and students in elite law schools (most of Manne’s centers were at lesser-ranked schools) which solidified the stature of the law and economics sub-field and raised its status as a distinctive alternative to traditional and contemporary legal scholarship. Law and economics was not Olin’s first choice, however. As an official explained to Teles: “I would have preferred to do something in constitutional law but . . . [i]f you said to a dean that you wanted to fund conservative constitutional law, he would reject the idea out of hand . . . Law and economics is neutral, but it has a philosophical thrust in the direction of free markets and limited government. That is, like many disciplines, it seems neutral but it isn’t in fact” (p.189). Olin’s gamble on law and economics paid off handsomely in ways that Lewis Powell would have applauded. At Harvard, Olin’s support for law and economics provided money, academic panache, and camouflage for Harvard’s president who wanted to stymie the critical legal studies movement and mollify angry alumni in corporate law firms upset by the havoc they felt the “crits” were creating within the profession. Law and economics raised the research bar for hiring and tenure decisions and offered alternatives to law schools that altered the balance of power in their faculties.

The Federalist Society rang repeated alarms within the legal profession that Harvard Law was “out of control” and [*636] from its beginning the Society has been concerned generally about the placement of conservatives in law schools and out of them. Teles maintains in his chapter on the Society, however, that over the course of its twenty-five year history the Federalist Society has carved out an influential niche for itself by limiting its attention to creating and fostering complex networks of lawyers, faculty, law students, and foundation patrons that are held together by an emphasis on serious debate and discourse over ideas that challenge legal liberalism while avoiding right-wing factionalism. Eschewing the establishment of an in-house litigation center early on, the Society also decided not turn itself into a conservative clone of the American Bar Association despite earlier feelings that perhaps it should and despite its persistent criticisms of the ABA. These strategic choices (there were others at critical moments) were made by a stable, self-perpetuating cadre of long-serving leaders, including Eugene Meyer, who were present at the Society’s founding and are aligned with foundation executives and senior figures from the legal community.

Teles neither constructs a theory of the rise of the conservative legal movement nor tests one. Conceptual references are employed at various times but largely to locate the study within the existing literature. This by no means diminishes Teles’ accomplishment. Each of his multiple interlocking stories of the pas de trois between different conservative entrepreneurs, their patrons and financiers, and the institutions they either created or tried to change took place over several years and demanded clear precise detailing, which they duly received. Teles’ book is an important reference and the chief departure point for anybody seriously wanting to understand one of the most important transformations in contemporary legal history and politics.

REFERENCES:

Bolick, Clint. 2007. DAVID’S HAMMER: THE CASE FOR AN ACTIVIST JUDICIARY. Washington, D.C.: Cato Institute.

Posner, Richard. 1973. ECONOMICS OF LAW. Boston: Little Brown and Company.

CASE REFERENCE:

KELO v. CITY OF NEW LONDON, 545 U.S. 469 (2005)

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