The Home of American Intellectual Conservatism — First Principles

October 22, 2018

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

The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton Studies in American Politics) (Princeton University Press, 2008) begins by juxtaposing the naivety of Nixon aide Pat Buchanan, bragging in a 1972 memo that the 37th president had reoriented the Supreme Court rightward, with the won’t-get-fooled-again mentality of conservatives in response to George W. Bush’s ill-fated 2005 nomination of Harriet Miers to the High Court. “The contrast between the two vignettes is telling,” author Steven M. Teles writes. “The inability of Nixon’s four appointees to transform the Supreme Court taught conservatives that electoral success was not enough, in and of itself, to produce legal change: conservatives’ failure in the Court reflected a deep imbalance between their forces at the elite level and those of their liberal counterparts.”

Teles’s then/now comparison effectively highlights the maturation of conservatives. It also illustrates the author’s bowdlerization of why that maturation came about. Buchanan’s memo strikes modern ears as absurd because just months later the Supreme Court, in an opinion written by an Eisenhower appointee and joined by several Nixon appointees, invalidated the abortion laws of the states through Roe v. Wade. Harriet Miers so offended conservatives primarily because her support for Roe v. Wade was a matter of public record. That this is a crude retelling of the history doesn’t invalidate it as the crux of the history. Though not a sin of omission on par with a history of the abolitionist movement containing a few glancing references to slavery, Teles’s weird exclusion of abortion—and gay marriage, school prayer, and other moral and religious questions before the courts—nevertheless undermines the idea that The Rise of the Conservative Legal Movement is a book about the rise of the conservative legal movement. The book has a narrower scope, ably chronicling the evolution of libertarian-oriented public interest law firms, the emergent scholarly field of law and economics, and the influence of The Federalist Society.

That law and economics, a field virtually non-existent at law schools just a half century ago, is today a subject taught at most major law schools is the product of one man and one well-endowed foundation. Though the aims of Henry Manne and the John M. Olin Foundation coincided, their strategies did not.

If not for the John M. Olin Foundation, the application of economic principles to law might now be regarded as the crank obsession of a few academics. The foundation poured tens of millions of dollars into the fledgling discipline from the 1970s onward, dwarfing the amount given to the field by other conservative philanthropies. Top law schools rushed to milk the law-and-economics cash cow and promptly established such programs with Olin money. “The focus on elite schools was driven by the belief—especially strong at the Olin Foundation—that intellectual credibility and distinction are produced by only a handful of institutions,” Teles writes. “This explains the foundation’s repeated concern that it create a ‘foothold’ or ‘beachhead’ and ‘keep a candle lit in the darkness’ at top-ranked schools.” More than hunch buttressed this view. As Teles points out, three out of every four law clerks serving the Rehnquist Court came from just seven elite law schools.

Rather than act as a missionary amid the heathen, Henry Manne opted to establish his own church, the Law and Economics Center (LEC). Armed with stubborn determination and a clear vision, Manne’s tenacity in the face of repeated setbacks is an inspiring tale of the power of perseverance. His 1986 takeover of the George Mason School of Law, complete with wholesale firings of untenured-faculty and buyouts of suspected opponents, transformed a milquetoast law school into a giant Law and Economics Center. Teles’s retelling of the “bloodbath” reads like something out of The Godfather. Manne’s hardball tactics might appear coldhearted absent of context. Manne, however, played by the opposition’s rules. The University of Miami, which enjoyed the prestige but not the politics of his LEC, had reacted to Manne’s 1980 decision to depart by changing locks, posting armed guards, and ordering offices vacated. When Olin then encouraged Cornell to consider employing Manne, tenured radicals killed the planned appointment. At Emory, where Manne’s LEC relocated after Miami, the Olin Foundation’s support for the university’s attempt to absorb the LEC undermined Manne’s desire for independence. So, the Johnny Appleseed of law and economics witnessed his relationship with another affiliate institution deteriorate—and the travelling Manne was forced to move his LEC again. Rather than deal with yet another ideologically hostile institution, Manne decided to become the institution. Thus, in 1986, Manne transformed George Mason School of Law, a seven-year-old law school, into the fountainhead of law and economics, one of America’s most respected law schools, and home to Nobel laureates James Buchanan and Vernon Smith.

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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