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Justice For All

How to balance the bias in the legal profession.

Sep 29, 2008, Vol. 14, No. 03 • By CHARLOTTE ALLEN
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The Rise of the Conservative Legal Movement

The Battle for Control of the Law

by Steven M. Teles

Princeton, 358 pp., $35

This book opens with a chilling anecdote following Richard Nixon's 1972 landslide reelection, in which he carried every state in the Union except DC and his Democratic opponent George McGovern's home state of South Dakota.

According to
Steven Teles, the young Patrick Buchanan, then a White House aide, exultantly declared that although the media might be almost uniformly liberal, Nixon had "all but recaptured" the Supreme Court from the left. Buchanan prophesied that Nixon's four first-term appointments to the High Court--Chief Justice Warren Burger and Justices Harry Blackmun, Lewis Powell, and William Rehnquist--would halt the "social experimentation" characteristic of Burger's famously liberal predecessor Earl Warren and turn the Court into an "ally and defender" of the conservative values of Nixon's constituents.

Yes--and two days after Nixon took the oath of office on January 20, 1973, the Supreme Court handed down that monument to conservative jurisprudence, Roe v. Wade, written by Blackmun and signed onto by all of Nixon's appointees except Rehnquist. Even now, 35 years after Roe, with three Republican-appointed liberals on the Court (John Paul Stevens, Anthony Kennedy, and David Souter) still helping to block any hope for overturning that landmark exercise in judicial overreaching and the creation of imaginary constitutional rights, we are still living with the consequences of blithely assuming, as Buchanan and many
others have done, that conservative victories in elections automatically translate into a conservative transformation of the legal system.

Teles's book is a kind of counterweight to Donald Crichtlow's important Phyllis Schlafly and Grassroots Conservatism: A Woman's Crusade (2005), also published by Princeton and, like Crichtlow's book, a piece of first-rate scholarship based on archival research and many interviews. Crichtlow argued that although conservative ideas promulgated by intellectual elites might have consequences, those consequences could not have occurred without the efforts of grassroots-mobilizing conservative activists such as Schlafly, a quintessential non-insider who almost single-handedly blocked the Equal Rights Amendment and helped engineer both the Goldwater and Reagan presidential nominations. Teles contends, au contraire, that grassroots conservatism, which propelled the Nixon, Reagan, and both Bush presidential victories, may be all well and good, but it is not enough to effect significant institutional changes, which require the presence of elites, and elites in key positions of power and influence, particularly in the courts, which make much of the law under which Americans live.

Nixon (along with his Republican successors Gerald Ford, Ronald Reagan, and the elder George Bush) made grave mistakes in Court appointments, mistakes that generated, among other things, the constitutional and moral travesty that was Roe v. Wade, because, while there might have been plenty of grassroots conservative opposition to unrestricted abortion rights and other forms of High Court "social engineering," there was no conservative legal establishment in place to vet and effectively block the elevation of the justices who have helped keep Roe for nearly 40 years, along with other constitutionally dubious concepts such as racial quotas, mandatory coeducation, and the "right to die."

One of the longest-surviving of those mistakes, proving how lasting were its consequences, is the 88-year-old Justice John Paul Stevens, who managed to convince President Gerald Ford (who appointed him to the High Court in 1975) that he was a conservative because he wore a bow tie and voted Republican. Over the years Stevens "grew" (as the liberal press often put it) in a leftward direction, as did Reagan appointees Kennedy and Sandra Day O'Connor and the elder Bush appointee Souter.

Compare the ease with which such dubious appointments wafted under the conservative radar screen, says Teles, to the uproar on the right after George W. Bush chose Harriet Miers, a personal friend perceived as ideologically unreliable, for the Supreme Court in 2005. Bush was obliged to retract Miers's appointment within weeks, and his two appointments to date who did survive confirmation (with the right's blessing), Chief Justice John Roberts and Associate Justice Samuel Alito, have so far proven to be reliable juris-
prudential conservatives of the sort for which Nixon et al. could only throw the dice and hope.

The Rise of the Conservative Legal Movement, densely packed, meticulously annotated, and thus not exactly bedtime reading, chronicles in minute detail the long road from the Nixon to the current Bush era, along which an array of dedicated conservatives that included maverick law professors, entrepreneurial lawyers, and shrewd and farsighted funders at the now-defunct John M. Olin Foundation (which granted Teles free access to its archives for his research) and other right-of-center foundations, managed to cobble together enough of a network of key institutions, a legally conservative "new class" (as Teles calls it) in Washington and elsewhere not only to ensure that Republican judicial appointments were less of a crapshoot but to influence the courts themselves and the legal thinking behind their rulings.

The process is far from complete for, as Teles notes, conservatives have yet to displace the liberal legal network that currently dominates the courts, the law schools, and an oligarchy of public-interest law firms that comprises such left-leaning heavyweights as the American Civil Liberties Union, the NAACP Legal Defense Fund, the Mexican American Legal Defense and Educational Fund, and the Environmental Defense Fund. Nonetheless, the very fact that conservatives have managed to compete at all with the pluripotent and massively funded (thanks to the federal government and the Ford Foundation) liberal legal establishment is, in itself, a kind of miracle because, during the late 1960s and early '70s conservatives were largely locked out of the law schools' professoriate, nearly absent from the vast government legal bureaucracies (such as the Justice Department), and waning in influence even in such putatively neutral professional organizations as the American Bar Association.

The New Deal had attracted bright young legal liberals into government agencies, which in turn bloomed under expansive New Deal legislation, and by the 1960s those same liberals were staffing law school faculties and the judiciary. The latter institution not only fed the liberal beast ideologically by churning out court decisions supporting expansive views of both government power and hitherto undiscovered constitutional rights, but fed it financially by requiring the government to support liberal law firms and their lawyers via mandated attorney's fees. (Gideon v. Wainwright, the 1963 decision of the Warren Court ordering local governments to supply lawyers to indigent criminal defendants, set a precedent for taxpayer subsidies to the liberal bar.) With assured sources of income thus at hand, "public interest" law, aimed at setting public policy in courts rather than legislatures, burgeoned exponentially during the 1960s and '70s at the hands of liberal lawyers.

As law professors, those same liberals (or their academically inclined soul brothers) fed their ideas to a fashionably radical crop of '60s/'70s law students, and those students eventually came to staff not only the public-interest firms but private law firms as well, where they donated their services in pro bono work for liberal causes and began climbing the ranks of the influential bar associations. The ABA's split vote in 1987 to deny Reagan's Supreme Court appointee Robert Bork a "well qualified" rating, despite his distinguished career as a federal appellate judge and Yale law professor (a vote that helped sink his Senate confirmation), showed how thoroughly the left had marched through traditional legal institutions.

As the Nixon and Reagan presidential victories indicated, the right had plenty of grassroots support but was nearly powerless in the increasingly powerful court system, a system in which elites count. Teles chronicles the right's only partially successful efforts to gain a foothold in a generally hostile legal establishment. He focuses on two of those efforts: the creation of conservative public-interest law firms aimed at rolling back liberal victories in the courts, and moves to change the culture of the law schools, by way of conservative networks such as the Federalist Society, founded in 1982, and the "law and economics" movement among free market-inclined law professors that cast a critical eye on the monetary and social costs of expansive legal doctrines. The conservative public interest firms sought to change the direction of judicial rulings, while the law and economics movement sought to change the nature of the legal thinking that has churned out generations of liberals in the bar and on the bench.

Conservatives, steeped in a hermeneutic of suspicion of liberal elites--especially elites based in Washington and the academy--had a difficult time figuring out how to compete on liberal turf, and, as Teles narrates it, there were many fits and starts. The first conservative public-interest firms, founded during the late 1970s, for example, were for the most part ineffective disasters, operating on a regional grassroots model that relied on local businesses for funding. That usually meant underfunding, which in turn meant that the lawyers who staffed the regional firms had few resources for litigating complex and expensive cases and were often reduced to churning out amicus curiae briefs in other people's cases that impressed donors but had little effect on the courts.

Alternatively, as Lenin could have told the regionals, most businesses were (as they still are) only too happy to sell the hangman his rope by scrapping anti-big government principles whenever they could get big government to work for them. A typical early fiasco was a First Amendment lawsuit filed during the early 1980s by the Denver-based Mountain States Legal Foundation (founded by Reagan's future interior secretary James Watt) contesting the city's grant of an exclusive cable television franchise to William Daniels. The monopoly-craving Daniels happened to be a friend of Joseph Coors, head of the Coors brewery and chairman of Mountain States's board of directors. Coors promptly resigned (complaining that Mountain States was supposed to be battling the Sierra Club, not his friends), donations to the firm plummeted, and the Denver cable case went nowhere.

Even after conservatives finally figured out that they should mimic liberals by creating nationally focused firms based in Washington, concentrate on direct litigation of strategic test cases instead of wasting their time with amicus briefs, and seek funding from ideologically committed foundations rather than finger-to-the-wind corporations, there were humiliating disasters. Chief among them was the Washington-based Capital Legal Foundation's libel lawsuit against CBS on behalf of Gen. William Westmoreland on the claim that CBS's 60 Minutes had reported that Westmoreland had knowingly falsified reports of enemy troop strength in Vietnam. The foundation not only mishandled its legal strategies--Capital's chief, Dan Burt, was a brilliant lawyer but inexperienced in libel law--and ran out of money, so that Westmoreland had no choice but to settle when it became clear that he was going to lose, but it also failed in its policy objective of shaming CBS into less biased reporting.

Eventually a second, more activist generation of Washington-based conservative public-interest law firms emerged during the late 1980s and early '90s: the confrontational Center for Individual Rights, focusing on academic freedom and opposition to affirmative action--a typical Center case was its partially successful challenge to racial preferences at the University of Michigan, which were mostly upheld by the Supreme Court in 2003--and the Institute for Justice, which took the opposite tack of stealing the liberals' thunder by positioning itself as the advocate of minorities and little people oppressed by government institutions.

The institute's best-known case to date is Kelo v. City of New London, in which the institute represented Susette Kelo, a homeowner in a working-class neighborhood of New London, Connecticut, that was the subject of a grandiose urban redevelopment scheme in which the city would expropriate all properties in the neighborhood and turn them over to a developer for an office and condominium project that would generate higher property taxes than a bunch of shabby private homes and businesses.
The institute narrowly lost the Kelo case in the Supreme Court, which ruled 5-4 in 2005 that tax base-boosting urban renewal is a "public purpose" that allows localities to seize private property via eminent domain. But the institute's victory in the court of public opinion was so overwhelming that dozens of populist bills designed to limit eminent domain powers were promptly introduced in state legislatures. A befuddled Democratic party chairman Howard Dean went so far as to blast the majority ruling in Kelo as a product of the Supreme Court's Republican right wing, whereas in truth, the Court's three most reliable conservatives (Rehnquist, Scalia, and Thomas) had all voted for the dissent.

Kelo and its aftermath demonstrated how far the conservative legal movement had come since its days of dependency on business interests. One of the indirect beneficiaries of New London's redevelopment plans, and hence of the Supreme Court's liberal majority in Kelo, was the Big Pharma heavyweight Pfizer, which had built a research facility not far from Susette Kelo's home and had been agitating with the city for years to upgrade the neighborhood. No wonder Howard Dean got confused about which side he ought to be on!

The law-and-economics movement at the law schools also had its setbacks, but it had the advantage of an older pedigree, at the University of Chicago, where the antitrust professor Henry Simons (1899-1946) had battled the New Deal's theoretical underpinnings from the beginning, and where Simons's law-faculty protégé Aaron Director (1901-2004), brother-in-law of Milton Friedman, had cofounded the Journal of Law and Economics as early as 1958 (the Nobel Prize-winning economist Ronald Coase was coeditor). Director's libertarian "Chicago School" theories about the high costs and inefficiencies of government intervention in markets influenced the thinking of Rehnquist, Bork, Scalia, and the prolific writer Richard Posner, a Director protégé at Chicago appointed by Reagan to the 7th U.S. Circuit Court of Appeals in 1981.

At the height of liberal dominance of the law schools, the early 1970s, law and economics seemed to be the only legal field in which conservative views were considered not only respectable but intellectually exciting. Several up-and-coming law schools invested heavily in young law-and-economics scholars, one of them being my own legal alma mater, the University of Southern California, which gave career starts to Richard Epstein, now at Chicago as a doyen of libertarian legal analysis, as well as Robert Ellickson and Michael Levine, now both at Yale. (I never had a class with Epstein but I did study--although not hard enough, I admit--with Ellickson and Levine, whose sardonic takes on government interference with property and contract rights permanently derailed any thoughts I might have had about joining the Lawyers' Guild.) Eventually the conservative foundations, especially Olin, got into the act by funding law-and-economics programs and subsidizing student scholarships at strategically selected universities, especially Harvard, which was by the 1980s in the postmodernist grip of the Critical Legal Studies movement, which viewed the law as a tool for keeping capitalist power structures in place.

Teles devotes many pages to the peripatetic maneuverings and controversial personality of Henry Manne, an alumnus of Chicago and Yale who became famous for his theory that insider trading, even though it sounds bad, shouldn't be illegal because no one is really harmed, and also for his economics seminars for law professors and judges held at luxury locations and sometimes criticized as junkets. An indefatigable fundraiser who hit up corporations and foundations with equal shamelessness in his quest to build a university-affiliated (but Manne-controlled) Law and Economics Center, he moved from law school to law school--George Washington, Rochester, Miami, Emory--sometimes alienating deans and other university officials who resented his empire-building.

By the early 1980s even the ever-generous Olin Foundation had lost patience with Manne. But in 1985 George Mason University in the Virginia suburbs of Washington invited Manne to revamp its low-status law school, and as dean (he is now dean emeritus) he made the school his personal law and economics bastion, packing the faculty ranks with young Chicago School theorists enticed by the prospect of making their scholarly names at George Mason and then moving upward to more prestigious institutions.

Clearly, as Teles informs us, the conservative legal movement has not been an unmitigated success. Conservative public-interest law firms don't win all their cases, and can even generate aggressive liberal backlash, as in the University of Michigan cases, which led to a closing of the ranks by the liberal academy on the issue of racial preferences. George Mason remains a second-string law school despite brilliant faculty hires under Manne. The law-and-economics movement itself has become ideologically diluted at some schools, for "economics" can mean left-of-center dirigisme economics as well as the free-market Chicago School.

No doubt, the most successful conservative legal venture has been the Federalist Society, yet another Olin-funded project. The society, which now has chapters at 180 law schools, functions as a "network entrepreneur" (Teles's words). The mere fact of membership, which is viewed with hostility at many law schools and exacts a cost for joining, sends signals to other conservatives (such as potential employers, whether in government or elsewhere) that the member is ideologically reliable. The Federalist Society, while neutral politically, has played a subtle but influential role in Republican presidents' judicial nominations, supplying reliable information about candidates and spokesmen to the press. Without the Federalist Society and its networks of data and people, the Roberts and Alito nominations, now cementing a solid conservative minority on the Supreme Court, would have been
dicier propositions for the Bush administration. Still, as Teles further notes, the society, with only 20,000 lawyer-members nationwide, is no match in size, resources, or influence for the 400,000-member American Bar Association.

As others have observed, The Rise of the Conservative Legal Movement might be better titled The Rise of the Libertarian-Conservative Legal Movement, for Teles pays almost no attention to successful socially conservative public-interest law firms such as the Becket Fund for Religious Liberty and the Rutherford Institute, which largely focus on church-state and religious-freedom issues, or even the James Madison Center, which fights government constraints on political speech and spending. Indeed, Teles scants an entire range of Supreme Court-created rights dear to liberals, from almost unlimited abortion to protection for obscenity to restrictions on public prayer to the "right to die"--all of which have generated considerable grassroots opposition.

Where do social conservatives fit into the conservative legal movement? Perhaps Teles will inform us in another book. But meanwhile, The Rise of the Conservative Legal Movement is a fine piece of historical scholarship and an important contribution to understanding strategies for combating entrenched political and intellectual elites.

Charlotte Allen is a contributing editor to the Manhattan Institute's Minding the Campus website.