The Home of American Intellectual Conservatism — First Principles

December 16, 2017

FEATURE ARTICLES
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The Conservative Legal Movement: Still Wondering How They Got There
Daniel J. Flynn - 03/11/09

Whereas Olin and Manne differed over the best way to win the battle of ideas through the law schools, the Center for Individual Rights (CIR) and the Institute for Justice (IJ) adopted alternative strategies in winning battles in the courts. Though both modeled themselves on the successful legal-pressure groups of the Left, the models they chose inevitably led them on separate paths towards similar ends. The IJ’s Clint Bolick, for instance, admits to emulating the strategies of the NAACP Legal Defense Fund and monkishly studying the writings of civil-rights leaders. This resulted in IJ, without apology, adopting the tactics conservatives once decried: judge shopping, selecting underdog plaintiffs for sympathetic effect, and courthouse public relations stunts. As Teles writes, “From the moment it opened its doors, IJ was committed to pursuing libertarian goals by targeting groups typically associated with liberalism.”

CIR trod another path. President Terry Pell admits, “We wanted to be what the ACLU should have been,” which is to say an outfit willing to defend unpopular people with cases based on sound principle. Thus, whereas IJ would seek out aggrieved single black mothers as school-choice plaintiffs, CIR had no compunction about taking the politically incorrect cases of whites victimized by university racial-preference schemes. As was the case with Manne and Olin’s conflict, the reader gets the impression that the competing strategies turned out to be complementary.

The Federalist Society, on the other hand, bucked calls to become a conservative imitation of an established group, rebuffing calls, for instance, to rate judicial nominees à la the American Bar Association. Instead of imitating the Left, it learned from what it saw as the mistakes of other conservative groups—it abjured Young Americans for Freedom in-fighting and Dartmouth Review-style ridicule of intellectual adversaries. The Federalist Society, then, would aid the career paths of friends and debate opponents. “None of the Society’s effects on the politics of judicial nominations, networking, placement of members, or facilitating connections across government is denied or foresworn by its leaders,” notes Teles. “That said, the Society could never have produced these effects had it pursued them directly. By limiting its programming, and thereby nurturing a reputation for intellectual seriousness and distance from short-term partisan politics, the Society has, perhaps paradoxically, been more effective in serving the political goals of its allies than a more directly partisan organization ever could have been.”

The snobbery that has heretofore excluded a book on the conservative legal movement from a university press also excludes from such a book the elements of conservatism that academia finds most uncouth. There is the Institute of Justice but no American Center for Law and Justice; the Law and Economics Center but no Ave Maria School of Law; school choice for inner-city blacks but no school prayer for rural evangelicals. The result is a version of conservatism so cleaned up for polite company that it is more disguise than makeover. Should conservatives be grateful that such a book has been published, by Princeton University Press no less, or lament the invisibility therein of the issues that primarily catalyzed and animated their reaction to the legal Left’s excesses?

The narcissism that prompts academics to obsess over political movements of which they are part results in an incuriosity about political movements to which they do not belong. Who has time to look out the window when there is a mirror to gaze upon? This ensures that so much is written about so little, and, in the case of the conservative legal movement, so little is written about so much. In the wake of libertarian public-interest law firms spearheading such cases as Rosenberger v. University of Virginia, Kelo v. New London, Hopwood v. Texas, and Gratz v. Bollinger, three Federalist Society members sitting on the Supreme Court, and the establishment of a new and vibrant field—Law and Economics—at America’s top law schools, an exploration of the libertarian-Right’s legal counterrevolution is long overdue.

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