|
|
|
Book Review
| Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law, Princeton: Princeton University Press, 2008. Pp. xi + 339. $35.00. (ISBN 978-0-691-12208-3).
|
| Starting in the 1970s conservatives found that electoral victories were not matched by desired policy changes. The conservative program was often frustrated by an enduring "legal liberal network" (22). Sustained by activist courts, elite law schools, the organized bar, and public interest lawyers, legal liberalism retained its hegemony over many policy outcomes despite waning political support for liberalism. Faced with this formidable obstacle to their agenda, conservatives set out to alter the legal culture and undermine the assumptions on which legal liberalism rested. In this important book, Steven M. Teles recounts the remarkable emergence of a successful conservative challenge to liberal dominance of legal institutions. Drawing upon interviews with key figures and organizational records, Teles has produced a balanced and insightful study of the conservative legal movement. He also sheds light on litigation strategies and the role of ideas in fashioning the response to the regime of legal liberalism. |
1
|
|
This is not a tale of early and unbridled success. Rather, Teles stresses that the conservative legal movement grew less from a master strategy than by trial and error. The initial conservative public interest firms in the 1970s were for the most part ineffective. A close relationship with business interests made the firms appear to be largely fronts for the business community. The corporate sponsors wanted strategies that promised an immediate result rather than long-range change. More troublesome, there was often tension between the ideological objectives of conservative legal activists and the concrete concerns of their business patrons. |
2
|
|
In the 1980s a new generation of conservatives candidly examined the weakness of their legal movement and were receptive to new ideas and organizations. Downplaying business ties, conservatives focused on changing the intellectual environment as a means of ultimately influencing courts. They paid special attention to intellectuals and academics. Teles skillfully recounts the spread of the law and economics discipline, with its emphasis on market solutions, into the law school curriculum. This development gradually reshaped the ideological dynamic in a number of law schools. The emergence of the economic approach to law dovetailed with the rapid rise of the Federalist Society as a vital catalyst in the conservative legal movement. Unlike many interest groups, the Society does not engage in litigation or take positions on public issues. Instead, it encourages serious intellectual debate over legal questions, serves as an umbrella for a wide range of conservative thought, and facilitates networking among conservative lawyers and academics. "The Federalist Society," Teles concludes, "has played a critical part in building the support structure of the conservative legal network" (179). |
3
|
|
Concurrently, a second generation of conservative public interest law firms, exemplified by the Institute for Justice, adopted new litigation strategies grounded on principled advocacy. They carefully selected cases with potential to mould constitutional law, and sought to forge alliances with poor clients, racial minorities, and small businesses. Even more striking, conservative public interest lawyers discarded the doctrine of judicial restraint espoused by a number of conservatives in the 1960s and 1970s in reaction to the leftward drift of the courts. As Teles points out, conservatives historically had viewed the courts as a bulwark of economic rights against legislative excess. Indeed, before the New Deal era the doctrine of judicial restraint was championed by a generation of liberals as a means to curb conservative judges. Rejecting judicial restraint as a defensive position unlikely to ultimately prevail in modern constitutionalism, the conservative public interest firms shifted strategy. They sought to use courts to advance libertarian policy goals and restrain the power of government. Conservatives urged a more vigorous reading of the takings clause, defended economic liberties, challenged affirmative action in university admissions, and attacked restrictions on campus free speech. The efforts to strengthen takings jurisprudence are especially revealing. Despite the narrow setback in Kelo v. City of New London (2005) over the question of "public use" in eminent domain cases, conservative public interest lawyers raised a salient issue and did much to arouse public opinion on the subject. They also mobilized in support of legislative reform at the state level and continue to challenge takings in the state courts. In a sense, conservatives were able to turn defeat into success. |
4
|
|
Teles offers a thoughtful assessment of the impact of the conservative legal movement, and is careful not to attribute undue influence to conservative legal activism. He concludes that the improved organizational capacity of conservatives has enabled them to compete with, but not displace, the legal liberal network. Still, he points out that since the 1970s the efforts of legal liberals "have been devoted increasingly to holding on to what they already have" (273). This fine book will surely become the leading authority on the efforts of modern conservatives to shape law. It should be of interest to a wide range of scholars and lawyers. |
5
|
| James W. Ely, Jr.
|
| Vanderbilt University Law School |
|
Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.
|