In the Spring of 1986, when I was in law school at UCLA, there were two New Republic articles I vividly remember. Louis Menand’s "Radicalism for Yuppies” described the radical Critical Legal Studies (CLS) movement, championed by Harvard Law professor Duncan Kennedy. The other was a heartfelt article by Chicago union lawyer Thomas Geoghegan, entitled “Warren Court Children: The Angst of an Aging Activist," about how hard it was not to sell out to corporate interests in the face of right-wing encroachment that made being a liberal lawyer so unsatisfying.
Menand effectively showed that the CLS movement was ridiculous, even to me at the time. After all, I believed that I was about to enter an honorable profession, and here were people at respectable institutions trying to destroy it, and render our training irrelevant. That was too much, even if I was sufficiently nihilistic to enjoy listening to Lou Reed as I huddled over case books. In Menand’s telling, the CLS movement was premised on the notion that the legal system was inherently meaningless because every decision by the judiciary was political, and based on class and race-based prejudices. Champions of CLS like Kennedy ("Crits") were attempting to subject American law to a systematic deconstructive analysis. It was devil's advocacy to the point of bad faith. Among Kennedy’s recommendations was that young law firm associates refuse to laugh at the senior partner’s jokes, as if this was striking a blow for the Revolution. They were intellectual terrorists, happily ensconced in elite institutions. They are the same people who eventually brought us speech codes, and hilarious stories of PC abuses on university campuses.
I was not so dismissive of the ethos of Geoghegan's article, and liked his voice well enough that I bought and read several of his books thereafter. The thesis of "Warren Court Children" was that the Reagan Administration had so thoroughly rolled back the tools of public interest lawyers that practitioners like Geoghegan were thinking about throwing in the towel. Although I have searched the Internet for a copy of “Warren Court Children,” I could only find snippets. This paragraph gives a taste:
In law libraries I wasted my youth in the romantic belief that the law was a learned profession. I began at Harvard, in Langdell Library, a cathedral of the law, with big Domesday-type books and wall-size portraits of the lord chief judges in scarlet and black. Like many students, I studied the law, serious and grave, stacking up the cases into little theological systems. Now I have ended up in Chicago, in Cook County Library, where it is like reading in a bus station, with chewed-up books, screaming bag ladies, and this public announcement every five minutes: “This is a public library, please watch your wallets and purses”.
Still, as he described in “Warren Court Children,” Geoghegan had so far refused to take the advice of his friends and go over to the dark side, in their word “give pigdom a chance.” He now has a new book out about how the Right is responsible for everything bad in American law today, which means that 20 years later, he still hasn’t “sold out.”
In addition to being a great writer, Geoghegan was a thoroughly likeable guy. He cared about his clients, and reveled in ideas. Even if I now disagree with him politically, his characterizations of the frustrations of being a lawyers were classic. His Warren Court sentiments were also well known to me. Always conscious that we were not as ideologically pure as students at our sister campus at Berkeley; my UCLA classmates nearly wept at accounts of the civil rights movement, hissed at any suggestion that abortion should be anything but on demand and without apology.
When I went back to Westwood more recently to give a lecture on counterterrorism, I was gratified to see so many JAG Corp. haircuts in the audience. That career choice would be unheard of among my dope smoking, divestment-urging, affirmative action-loving classmates.
What accounts for the difference over 20 years? Many people, like me, seemed to move to the Right, concluding that Israel deserved our support and that political expression through armed violence was inexcusable and absurd. To some ideologues, these “radical” ideas make us enemies of the Third World. I intentionally act the part. When I am out for a walk with my daughter in our Capitol Hill neighborhood and we are accosted by young signature-seeking petitioners wearing Che t-shirts or anything that refers to “revolution,” I make a point of ridiculing them. Though I fought Reaganism and voted for Mondale in 1984, I look back on that era with far more fondness than I would have had Jimmy Carter been reelected in 1980. It was not just because I was in my twenties and capable of running three miles without breaking a sweat. Reagan made being an American fun again. People sobered up, or at least took up different drugs that made them more awake and productive rather that stupid and tired. It was an era made for Type A types who liked to stay up late and play with spreadsheets. It was stylish to care about success and to dress the part.
Despite these political and legal developments, Geoghegan was wrong when he suggested the death knell of public interest law in 1986. The conservative legal movement found little success until well into the 1990s, by which time Congress had gone Republican, a development no one could have foreseen back then when a Democratic Congress was cutting off funding for the Nicaraguan Contras and interrogating Oliver North. This is clear from the new book by Steven M. Teles, The Rise of the Conservative Legal Movement. A fascinating intellectual history, it provides answers I would otherwise not enjoy as a middle aged lawyer who wonders what happened over the last 20 years.
The 1960s was about more than free sex and occupying university buildings. Leftists lawyers—those who went to work at public interest law firms—were able to remake American governance. Parlaying the Great Society growth in administrative law and abetted by a judiciary that was sympathetic to welfare rights and the notion that equality of financial income and economic outcome were constitutionally required, they were seemingly unstoppable, and they advanced to the point of hegemony. This came at a time when there was increased pressure to make American legal education more “relevant,” by stressing clinical programs and social action. Those who controlled the production of ideas and intellectuals had substantial competitive advantage. Congress began to pass a number of low-profile legal provisions allowing for “citizen suits,” loosening rules of standing, and facilitating public comment in regulatory proceedings. The only public interest jobs were for liberals. You could get paid fighting The Man, in the form of class actions against slumlords and oil companies.
Those who believed there two sides to this debate persistently wondered how to counter this ground trend, even if they were afraid to speak up at the time. The growth in impact litigation that stressed individual rights was seen as zero-sum. For every right, there was a human whose contrary desires were rejected. The free-market conservatives, who proudly spoke of "liberty" were present back then, even if not widely heard. It took some starts and stops, but ultimately the Right struck back, thanks to the help of American philanthropy and a voracious group of intellectual entrepreneurs.
In the public interest law world that arose, the Left had an advantage. As Teles describes it:
[W]hereas liberals had specialized repeat-players defining their side in court, conservatives were often represented by relatively unsophisticated state government lawyers or representatives of business who were more interesting in minimizing their costs than in the long-term legal strategy.” As a result, liberals could achieve durable policy outcomes far from the center of public opinion (i.e., busing and affirmative action) or that squeezed implementation of popular policies past where they would have gone otherwise (as was the cases with disability benefits and the environment.)
However, the rise of conservative public interest was not at all as inevitable as the back stroke of a pendulum. The conservative movement had a number of set-backs, and it was not at all clear when ”Warren Court Children” went to press that there was such a thing as a conservative counterweight, at least among public-minded lawyers. Sure, you could make a career prosecuting people (as I did), and there was money representing people and entities being sued by the public interest firms, but that was corporations themselves, who looked at litigation according to the impact a particular case had on its bottom line, rather than society in general.
The conservative public interest law firms got where they are today because they were wise enough to gain insight from their mistakes and flexible enough to change their planned course. The funders proved patient, even in the absence of clear metrics that they typically insisted on as a condition of their generosity. Things were not as bleak for liberals in the 1980s as Geoghegan claimed. The development of a conservative legal movement was far from inevitable at the time of the “Warren Court Children.” It had hardly gotten off the ground.
Conservative public interest lawyers got their start in the western states, fighting on behalf of property owners who wanted to keep their property in the face of federal governmental efforts to take it away and/or regulate their unfettered use of it. One of the most despised icons of the 1980s, President Reagan’s Secretary of the Interior, James Watt, was affiliated with the Mountain States operation of the National Legal Center for Public Interest, one of the first conservative public interest law organizations. The group focused its attention on amicus participation, however, due to their close ties to regionally powerful businessmen and a lack of coherent ideological principles to ground their litigation strategies, the group produced meager results. The early fits were exemplified by the defamation action filed by General William Westmoreland against CBS, which went to trial but was ultimately disposed of for no money damages, which most people viewed as a defeat for the conservative foundation who handled the case.
According to Teles, in the early 1970s, conservative ideas and political strategy were “animated by the belief that the genies of legal liberalism could be out back in the bottle. The professional and ideational entrenchment of legal liberalism made it impossible to turn the clock back, so the conservatives were forced to adapt to the structure of the regime they sought to displace. As a result, conservatives sought out ways to operate inside of institutions where they were unwelcome.” This, of course, took time.
The failure of imagination within the early conservative legal movement and the need for soul searching, was summarized in a report by Michael Horowitz commissioned by the Scaife Foundation. It concluded the business plan was all wrong. It was not enough to handle political cases. No one had yet offered young lawyers the sense that they could be caring and moral while simultaneously being opposed to the stale views of the Left. The new movement needed to stretch beyond the courts to the institutions that “supported legal activism and generated movement reputations and intellectual distinction.” It required that the Republicans develop a parallel set of elite organizations that could avoid being overwhelmed by the Democrats’ advantages in information, organization, networks, and professional power in the legal profession. If the American Right wanted to compete in the public interest law arena, they needed to move their own intellectuals and entrepreneurs to the fore. For conservatives to counter liberalism in court, they needed to establish “counterterrights” of their own, with precedential value that could push back the scope of governmental intervention. Though the battle is not yet over, there is now far more parity.
The movement does not depend on the funding of business interests, who were not sympathetic and sufficiently rich in their own right to hire their own lawyers. They had to build an infrastructure that stretched beyond lawyers and judges, and this required a healthy dose of funding from the likes of the Olin, Scaife and Bradley Foundations. This was, after all an intellectual revolution, necessary to the development of an alternative to the dominant narrative that had been monopolized by the Left for so long.
They focused on American law schools, where young minds were developing and cadres fostered. Law students become successful lawyers, and from there judges and legislators. If you caught them young and empowered them with a network and intellectual stimulation, they could promote common sense, even in a profession that seemed ridiculous at the time. What were these controverted issues, among those that seemed hopelessly lost to barbarians? The goodness of America, of course— the capitalist system, and the value of private property in keeping our worst human traits at bay. The nonsense was welfare as we knew it then, and racial quotas.
The groundwork for the revenge of conservative public interest law started with the law and economics movement, which eventually relegated the CLS movement to oblivion. It began to get respectable with a book by a young freak of nature in Chicago, Richard Posner, entitled The Economic Analysis of the Law.
Henry Manne, a George Washington University professor, absorbed Posner’s opus and, realizing the power of the new law and economics movement, crafted a plan to start a new law school from scratch at the University of Rochester. When this failed, he turned down an offer from Yale, and eventually went to Miami and then Emory. With funding from the Olin Foundation, he spread the law and economics message through seminars for law professors and judges (the latter which generated claims that conservatives were attempting to corrupt the federal judiciary.) Manne observed that, traditionally, knowledge diffused to decision-makers in one of two ways: publication in scholarly journals or through traditional classroom teaching, which made the outreach to law school faculties logical. Had Manne invested in pure scholarship, it is far from clear that anyone else would have built the movement’s organizational infrastructure.
Manne’s plan for Rochester was not all for naught. It was eventually adopted by the law school that became George Mason University, whose dean fired all of its tenured professors and started fresh, recruiting a new band of conservative legal scholars like my friend Michael Krauss.
During this period, another entity came onto the scene. The Federalist Society started at Yale in 1982 and soon installed franchises at other American law schools. At UCLA, I recall the Federalists as six fat white guys who liked to play video games and couldn't get dates. This is now hard to believe. It grew to a force that now counts a number of Supreme Court justices as members.
The Federalist Society grew during the 1990s, when the Executive Branch was controlled by the Democrats (which raises the irony that it may have been most effective when the Republicans were out of office). One of the most important spurs was the Senate’s rejection of Judge Robert Bork’s Supreme Court nomination late in the Reagan Administration, another example of how short-terms losses can actually be a good thing. The Society represented the most durable and well-ordered organization to emerge from this rethinking of modern conservatism’s political strategy. Its success was tied to its disciplined “boundary maintenance”: the organization was careful not to conflate activities of the organization itself with those of its members. Its goal was to facilitating the activism of its members and influencing the character of intellectual debate, rather than directly influenced the actions of government itself.
The Society grasped the importance of debate, and recognized that the movement was more likely to convince people of their side through fair and open hearings, believing that in the end the truth will emerge and their positions would be vindicated. Its growth did not depend on large conservative foundations; it was funded mainly by in-kind contributions and membership dues. It did not undertake litigation, though it did create a pro bono clearing house. Its most direct output was debate, through which it identified and developed conservative issues. Importanly, proximity can breed creativity by facilitating unplanned interactions and arguments and increasing the emotional intensity of scholarly interaction. The Federalists offered the platform for this proximity.
The two conservative public interest law firms to emerge from this new and improved movement were the Institute of Justice (IJ) and the Center for Individual Rights (CIR). Of the two, IJ is larger, with a budget three times that of CIR. One of the great ideas was to defend individuals of all races that were being crushed by a bureaucracy that comes from unnecessary expansion of the government, for which the conservative descriptive moniker “empowerment” was created and exploited.
Was this shift inevitable? On a micro level, I suppose I could have remained in Venice Beach, representing drug dealers and evicted tenants until my pony tail went gray, rather than moving to Washington to prosecute terrorists. I would have been true to the predominant UCLA ethos, circa 1986. Who knows whether my altered course would not play out at the macro evel? Reading The Rise of the Conservative Movement , it is clear that a selected few were prescient. History could indeed have very well have been different, just as a U.S. without John Adams might have remained under the British yolk.
To Teles, American political history has been marked by long periods in which one ideological “team outcompetes the other, producing institutional and policy change in its preferred direction for decades.” To him, ideas are especially important. Political movements can attain a durable advantage by identifying their own ideas with common sense, intellectual seriousness, responsibility, professionalism and ordinary decency, while claiming that their opponents ideas of “off the wall.” By the 1960s, legal liberalism had come to be associated, especially among the young, with idealism, the individual, civil rights, and a concern with justice, while conservatism was tarred with the brush of self-interest, and unseemly ties to business and other large concentrations of power, along with a lack of concern for racial justice. This, thankfully, is no longer the case, thanks to the rise of the conservative legal movement.
The views in this article are not those of the Department of Justice.