The Rise of the Conservative Legal Movement

The Battle for Control of the Law

Steven M. Teles

• Publisher: Princeton University Press
• Year: 2012
• ISBN:
  9781400829699
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Starting in the 1970s, conservatives learned that electoral victory did not easily convert into a reversal of important liberal accomplishments, especially in the law. As a result, conservatives' mobilizing efforts increasingly turned to law schools, professional networks, public interest groups, and the judiciary--areas traditionally controlled by liberals. Drawing from internal documents, as well as interviews with key conservative figures, The Rise of the Conservative Legal Movement examines this sometimes fitful, and still only partially successful, conservative challenge to liberal domination of the law and American legal institutions.
Unlike accounts that depict the conservatives as fiendishly skilled, The Rise of the Conservative Legal Movement reveals the formidable challenges that conservatives faced in competing with legal liberalism. Steven Teles explores how conservative mobilization was shaped by the legal profession, the legacy of the liberal movement, and the difficulties in matching strategic opportunities with effective organizational responses. He explains how foundations and groups promoting conservative ideas built a network designed to dislodge legal liberalism from American elite institutions. And he portrays the reality, not of a grand strategy masterfully pursued, but of individuals and political entrepreneurs learning from trial and error.
Using previously unavailable materials from the Olin Foundation, Federalist Society, Center for Individual Rights, Institute for Justice, and Law and Economics Center, The Rise of the Conservative Legal Movement provides an unprecedented look at the inner life of the conservative movement. Lawyers, historians, sociologists, political scientists, and activists seeking to learn from the conservative experience in the law will find it compelling reading.

1

Political Competition, Legal Change, and the New American State

Whether a given state changes or fails to change,
the form and timing of the change, and the
governing potential in the change—all of these
turn on a struggle for political power and
institutional position, a struggle defined and
mediated by the organization of the
preestablished state.
—Steven Skowronek, Building a New American State

A Polity Transformed: The Rise of Nonelectoral Party Mobilization

Political competition, as the epigraph of this chapter asserts, is mediated by the structure of the state. Challengers to a dominant regime do not operate in an empty playing field, but are forced to challenge inherited norms and institutions, or to adapt their insurgency to the structure of the regime they seek to dislodge. To understand why the conservative legal movement took the form it did, therefore, we need to begin with an account of the regime created by its opponents and the form of political competition that it produced.

In the process of creating a vast new set of policy commitments—from social insurance and economic regulation to civil rights and environmental protection—liberal reformers also transformed the American political system. This new policy process put a premium on knowledge, expertise, and professional credentials, and developed in tandem with the “legalization” of society, marked by an increasingly dense maze of laws, regulatory agencies, courts, and litigants.¹ In some cases, the national government actively encouraged professionalization in order to generate linkages between levels of government and between the state and society and encourage policy changes that could not be produced directly.² As universities expanded, graduate programs increased to sate the demand for professors, credentialed teachers, social workers, public administration professionals, and policy analysts. The higher education sector grew in tandem with the expansion of this new political system, generally accepting its assumptions and supplying cadres of trained individuals sympathetic to its preservation and expansion.

The fraying of separation of powers, federalism, and limits on governmental authority produced a policymaking system with multiple, overlapping programs, paid for and administered by different levels of government and nongovernmental organizations. Responsibility for policy outcomes was hard to affix in this complex system, making mass mobilization difficult and diverting participation into particularistic, piecemeal forms.³ The diffuse character of government meant that coordination and control of the policymaking system were produced by networks that cut across agencies, levels of government, and the state-society divide, rather than by political parties.⁴ Even as the Democratic Party’s electoral power waned in the late 1960s, its strength in these policy networks waxed. These networks, built largely through subsidy by third-party funders such as charitable foundations,⁵ facilitated policy change by encouraging courts, congressional subcommittees, and bureaucrats to collaborate in a process of low-visibility, incremental policy expansion.⁶ These changes in the structure of the policymaking process made elections decreasingly important as sources of large-scale policy change.⁷

The flip side of this institutional transformation was a political system increasingly sensitive to expert opinion, issue framing, and professional networks.⁸ Many of liberalism’s achievements derived from the skillful use of power by a transformed federal bureaucracy, staffed by actors sympathetic to (or previously involved in) social movements. This system’s advent gave liberal Democrats the ability to push their policy agenda even when the presidency was in the hands of Republicans.⁹ Shifts in attention, driven by interest groups, the media, intellectual entrepreneurs, and litigators, became important drivers of cycles of policy change, independent of the electoral fortunes of the political parties.¹⁰

By the 1970s, political scientists became convinced that these changes had permanently displaced parties as significant political actors. We now know that this claim was wrong—or at least incomplete. Rather than destroying parties, this transformed state produced a new form of party competition. Social movements and interest groups that had been organized in opposition to political parties eventually became institutionalized, cemented to the state, and coordinated in a network increasingly connected to the Democratic Party.¹¹ This activist network, primarily concerned with policy rather than electoral outcomes, became the dominant faction in the Democratic Party. The rise of this faction led to George McGovern’s nomination in 1972, as the head of a strange new coalition unlike any the Democrats had ever seen. In short, the new Democratic Party that emerged by the mid-1970s was “new” not just in the sense that new groups were incorporated, but also in how those groups were organized, coordinated, and centered.¹²

The Democrats created this new party system as it incorporated interest groups and social movements that had once defined themselves in opposition to the party. A loosely coordinated network that bridged state and society—what some observers called a “new class”—came into being as these activists moved into the professions, foundations, educational organizations, and the media.¹³ At the same time, older American elites who had once thought of themselves as part of a cross-party establishment linked themselves to these new actors, giving them access to institutions with substantial resources, connections, and prestige.¹⁴ While this network of activists, organizations, and elites cut across the two political parties through the 1960s, it became firmly incorporated into the Democratic Party in the early 1970s as the Republicans began to identify themselves with resistance to liberalism.

In contrast to European political systems, which feature a broad array of these kinds of activities and movements formally linked to the parties, the nature of American law (especially the tax code) and the strategic advantages that could be had from avoiding an open partisan coloration forced the relationship between the Democrats and their nonelectoral wing to remain informal. Despite this formal delicacy, an activity is partisan in a behavioral sense because of what it does, not what it is called. Political activity can be said to be “partisan” to the degree that participants operate as a “team” (their behavior is “coordinated”) and integrate their activities with a corresponding team of ambitious officeholders (their behavior is “coupled”). Understood this way, “party” is a continuous, rather than a bimodal, variable: organizations are more partisan to the degree that their behavior is coordinated with the party’s office-holding side. It is not necessary that every individual in a particular institution, such as a profession or a university, actively conceive of his or her activity as partisan for it to function as a support for a partisan coalition. What matters is whether there is general sympathy with the policy goals of a party, and whether the institution in question helps to coordinate action consistent with those goals and provide services to support them. Understood this way, the broad liberal network that worked closely with the Democrats to develop ideas, coordinate strategies, recruit personnel, and implement policies was now a part of the party system, in effect if not in name.

For a time, Republicans responded to this newly configured Democratic Party only in the electoral dimension, avoiding direct competition at the level of elite organizational mobilization. As a result, they were frustrated in their effort to create change except where a policy venue had a strong electoral lever (as in tax and defense policy), or where their objectives could be achieved by preventing action from occurring.¹⁵ In the new American political system of the 1970s and 1980s, access to specialized knowledge, networks across government and society to diffuse information and strategies, and allies in institutions that trained and recruited future policymakers were increasingly important, and conservative Republicans were at a severe disadvantage in all of these areas. This elite organizational imbalance explains the otherwise puzzling fact that many of the issues that the Republican Party now defines itself in opposition to were passed with almost no organized conservative response or critique.¹⁶ It was only when Republicans developed a parallel set of elite organizations that they could avoid being overwhelmed by the Democrats’ advantages in information, organization, networks, and professional power.

Political parties have always reached beyond the small core of office-seekers who carry their label in elections, but in the transformed party system that came into being in the 1970s, these nonelectoral dimensions of party activity have become increasingly important.¹⁷ As the parties became more polarized on ideological lines, the distinction between partisan and ideological activity became blurred.¹⁸ Increasingly enmeshed with political parties, these activists and their institutions have become the subject of fierce ideological competition, testament to which can be found in contemporary arguments over the composition of universities, the media, and even the medical profession.¹⁹

Parties have gone where the action is in American politics, seeking to control government not just through electoral warrants from the voters but also by coordinating the behavior of actors across society and among the different branches and levels of government. Explaining political competition in the era of electoral displacement does not require that we abandon assumptions of rational, optimizing, competitive behavior. Rather, it demands a recognition of the evolution in the locus of policy change and the effect that this has had on the collective pursuit of American political power. Much of the action in American politics currently resides in the realm of elite organizational mobilization, where the great battles of modern politics are being fought and where the alignment of the political system is increasingly determined. Far from disappearing, parties (rightly understood) are now competing over a much wider terrain than in the past.

The New Political Competition: The Case of the Law

Complex, technical, and professionalized, the politics of American law and courts has proven acutely sensitive to the increasing significance of ideas, information, networks, issue framing, and agenda control in American politics. Despite these changes, political scientists have, if anything, become even more likely to identify shifts in electoral power and public opinion as the motor of large-scale legal change. Electoral stimuli obviously influence legal change through the mechanism of judicial appointment. Purely electoral accounts of legal change are too quick to see continuity in the legal politics of the period up through the New Deal and that of the last fifty years. If the argument up to this point is correct, then explaining conservative countermobilization in the law demands a more capacious tool-belt than electoral theories can provide.

Theories that look to electoral stimuli as the key to understanding legal change are hardly new. Fifty years ago, Robert Dahl gave this argument its classical formulation: “Except for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance. As an element in the political leadership of the dominant alliance, the Court of course supports the major policies of the alliance.”²⁰ Subsequent authors have followed Dahl’s lead, claiming that the judiciary is too weak to avoid supporting the “dominant alliance,”²¹ actively advances the goals of the dominant party,²² or changes its behavior only in “constitutional moments” produced by realigning elections.²³ Other authors less interested in general theories of constitutional change have argued that the Supreme Court, independent of the composition of its members, appears sensitive to shifts in popular preferences, although this effect is typically somewhat small, and—significantly for our purposes—possibly in decline.²⁴

Students of the courts have devoted increasing attention to the conflict between the courts and the other branches of government that Dahl thought limited to “short-lived transitional periods.” Because of the long (and growing) length of justices’ terms, these periods may be more sustained than scholars in the Dahlian tradition recognized, and therefore of substantial constitutional significance.²⁵ The nonsimultaneous response of political institutions to external stimuli sets the stage for conflict between the judiciary and the other branches of government. As J. Mitchell Pickerill and Cornell Clayton argue, the Court’s attempts to disrupt the agenda of the dominant political alliance “will provoke an institutional response—such as a constitutional amendment, legislation to strip the Court of jurisdiction, or Court packing—to realign the Court’s jurisprudence with the priorities of the governing regime.”²⁶ Despite their useful addition of durable interbranch conflict, these arguments are not fundamentally different from others in the Dahlian tradition: it simply takes longer for the legal market to clear (that is, to align with the “dominant political alliance”) than earlier supporters of the “political court” theory believed. Entrenchment happens in this theory, but both its source and its remedy are electoral. Courts eventually change when, and only when, the dominant political alliance has sufficient time and power to reshape the composition of the court.

Dahl’s successors are clearly right to understand legal change as tightly coupled to larger processes of political competition. However, if the argument of the previous section is correct, neither partisan entrenchment nor disentrenchment can be understood predominantly by reference to electoral stimuli, as partisan conflict ranges well beyond the electorally rooted institutions that analysts of a “political court” usually assume drive long-term judicial change. What is more, theorists in this tradition give relatively short shrift to the declining prevalence or efficacy of institutional devices to align the courts with the dominant political alliance. Finally, modern Dahlians ignore the “thickening” of the American political system produced by the growth of the modern state, which has been shown in other contexts to have weakened the mechanisms of disruptive, electorally inspired change.²⁷ In short, “partisan entrenchment” occurs not only in courts, but also in the social institutions that feed the courts with ideas, personnel, and cases. In particular, professional associations, the politically motivated parts of the bar, and law schools are all sites for attempting to temporally extend a partisan coalition. Jack Balkin and Sanford Levinson recognize this when they note “one important feature of intellectual paradigm shifts and constitutional revolutions: the takeover of those institutions charged with teaching the young by newcomers imbued with the new learning and inclined to dismiss, often quite rudely, the purported verities of their predecessors.”²⁸ But Balkin and Levinson say nothing about how, i...