the rise of the conservative legal movement, again

Crooked Timber has a seminar on Steve Teles’ Rise of the Conservative Legal Movement. We covered it last year: read the back and forth between Teles and I here. Here’s my contribution to the Crooked Timber seminar:

Steven Teles’ The Rise of the Conservative Legal Movement (RCLM) is an important book. It is one of the few studies to thoroughly address the institutionalization of conservative politics. It’s also a well motivated account. Using ideas from contemporary sociology, Teles frames the conservative legal movements as an example of resource mobilization. Winning elections isn’t enough to implement conservative policy. One must create conservative networks and organizations that can be used to fight and win court battles.

In this response to RCLM, I’d like to argue that conservative legal movement is a failed movement. We have come to view the period from the 1970s to the 2006 Congressional election as an unqualified victory for the American right. Republicans put three of their own in the White House and gained control of the House of Representatives. The 9/11 era allowed a conservative White House to restructure the Federal government and expand its powers.

However, from a larger perspective, the conservative movement has been a failure. The conservative movement has targeted major policy domains for reform, only to win the occasional battle. Repeatedly, conservative activists railed against the New Deal era regulatory regime, but much of it remains. Cases like Kelo show that repeated appeals to property rights can fail even in courts that have been substantially shaped by conservative ideology. Conservatives have fought against Roe v. Wade, yet abortion remains legal in all states with few restrictions. Nearly all attempts to regulate, or re-regulate, private social life have ended in failure. There have been some victories, such as periodic tax code reforms, or the 1996 welfare reform act, but the state that liberals built in the 1930s and 1960s remains with few modifications.

How does the conservative legal movement fit into this picture? I argue that it mirrors the right’s general inability to substantially restructure American life. Let me draw on a few themes from RCLM to motivate the argument. In the closing chapters of RCLM, Teles notes that there is a general frustration within the movement because people seem to be attracted to hot button issues. Unlike liberal legal activists, who might tirelessly fight over a modest case like a tenant-landlord dispute, conservative activists appear most willing to donate their time for ideologically sensitive cases like campus speech codes.

Another theme: much of Teles’ book is dedicated to the law and economics school of thought, but Teles’ discusses how law and economics has now moved toward the academic mainstream. It’s no longer the case that law and economics is exclusively done by conservatives, or that it supports conservative policy prescriptions. Law and economics is now one specialty among many.

What do these two examples show? The first shows that the conservative legal movement has grown by leaps and bounds since the 1970s, but it is not yet at the stage where it can reform the legal system through challenging the law at multiple levels. The movement is unable to take the fight to the “ground” and perform a wholesale reconstruction of the law. The second example shows that the academic system has co-opted law and economics. The law and economics movement probably allowed a cohort of conservative law professors to successfully gain tenure, and it might be a standard tool for analysis in a few areas of law (such as anti-trust), but overall, the legal academy remains a politically liberal institution. The average law student is not required to take law and economics, nor does the average judge automatically rely on economics as an analytical tool. At most, one could say that law and economics is a well regarded specialty in the academy and that a notable group of judges use it.

I’ll conclude this essay by providing an interpretation of the conservative legal movement’s failure. By the late 1960s, liberals had succeeded in many domains: they regulated the economy in the 1930s, they provided extensive social support policies in the 1960s, they liberalized social mores in the 1970s and beyond. This reconstruction of society triggered various push-backs. The radical left claimed that the liberals hadn’t gone far enough, while the right claimed these reforms shouldn’t have been done at all.

What prevented the radical left and the conservative right from overturning the liberal society was that they were unable to provide an ideology that could act as a foundation for a new political order. Americans couldn’t live in a world without state sponsored safety nets and subsidies. At the same time, Americans could not accept the radical left’s promise of a state that appropriated the economy and focused on marginalized groups. Similarly, the conservative legal may have helped judges reach market oriented decisions in some cases, but the legal mainstream could not accept it as a new way of doing law. In the end, the RCLM documents the rise of an important movement, but this movement has only produced a niche in the legal academy, not a revolution in the law.