The Magazine

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.