[Welcome Steven M. Teles, Associate Professor of Political Science at Johns Hopkins University, and Fellow at the New America Foundation, and Host, Henry Farrell, Assistant Professor, Department of Political Science/Elliott School of International Affairs, George Washington University – bevw]
The Rise of the Conservative Legal Movement: The Battle for Control of the Law
Steve Teles’ book provides a great, readable analysis of how pro-market conservatives organized themselves against a legal profession and legal academy that they perceived as biased against them, and succeeded in changing it. It is reminiscent of other books on the rise of the right, such as Rick Perlstein’s Before the Storm, but concentrates on a much more specialized group of actors. Rightwing non-profit law firms have succeeded, at least in part, in bringing cases that raised attention for key regulatory issues. Rightwing funders provided the means that allowed legal academics to pioneer ‘law and economics,’ an approach to legal analysis that has become ever more important in influencing academic analyses, legal decisions and governmental regulatory priorities. Finally, the Federalist Society has allowed conservative lawyers to identify each other and to network (as seen, for example, in the controversies over Justice Department hiring practices under George W. Bush).
This is incredibly important stuff. America is a society of lawyers. Legal academics shape the ways in which judges think and in which bureaucrats administer programs. Judges for their part play an active political role, making decisions that define the contours of politics, often telling elected politicians what they can and cannot do. And lawyers often become politicians. Hence, the law is a key arena of political battle. A generation ago, conservatives were badly out-gunned in this arena. They were badly outnumbered and intellectually underpowered. Now, they are in a position of considerable importance. Republican appointees are a majority on several key appelate courts. Conservative ideas about the limits of politics and the vital importance of markets have reshaped the law’s intellectual basis. And the US Supreme Court has shifted sharply to the right.
Steve’s book has already become the standard analysis of the right and the law. Rachel Morris has a long article in this month’s issue of the Washington Monthly talking about the effort to roll back eight years of conservative hiring and appointments – she refers repeatedly to Steve’s arguments. As she should – they provide a provocative set of claims that liberals and the left need to think about, if they want to really succeed in rebuilding their own. To start debate going, here are the key questions that I see the book raising.
(1) Should intellectuals be given their head? One of the key lessons that Steve draws is that conservatives only really got to shape the argument when they allowed intellectuals and ideologues some freedom to pursue cases and interests that didn’t have an immediate political payoff. Thus, right wing public interest law firms did badly when business was able to shape too closely the cases that they did and didn’t pursue. Thus also the success of the law and economics program, which depended on a set of pretty open grants with relatively little emphasis on short term payoffs. Should the left adopt a similar approach?
(2) How should the left learn from the right? The right’s resurgence in the law was a reaction to the perceived success of the left in the era of liberal domination. But the right didn’t replicate the structures that the left have built. So how can the left wing learn from, say, the success of the Federalist Society, without trying to imitate it?
(3) The left and liberals had a ‘heroic’ concept of lawyers and law professors in the 1960s and 1970s that saw them as leading a crusade and winning great victories in the court for civil rights and for sexual equality. Today, not so much. Should we be trying to return to that concept, or alternatively trying to build alternative routes to social change?
The floor is open …
[As a reminder, please take off-topic discussions to the previous thread. -bevw]