The Rise of the Conservative Legal Movement: The Battle for Control of the Law

by Steven M. Teles

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.

Genres: Law, Politics, History, Nonfiction, Legal, American History, The United States Of America

362 pages, Kindle Edition

First published January 28, 2008

Reviews

[Mehrsa · Rating 5 out of 5]

This history is so fascinating and so important for anyone who wants to know more about institutional history, law, and specifically the rise of fedsoc/law and econ, and the other conservative movement centers in law schools.

I do have quibbles with the book--it pins the rise of the conservative movement to the over-reach of liberal clinics at law schools. That seems not right based on other histories I've read of the movement (including my own primary research on the Olin foundation, Powell memo, and neoliberal movement building). I think this origin story has been challenged by other histories of neoliberalism and to his credit, Teles does say that his was the first history and it was bound to get some stuff wring.

What stands out for me is how you can fuel a powerful movement for 50 years on just the sense and appearance of victimhood.

[Matt · Rating 5 out of 5]

Phenomenal book. I learned a great deal from this about the Federalist Society and Law and Economics. And more generally, about the role of intellectual entrepreneurs in creating social change. Really well done, and highly recommended.

[Frank Stein · Rating 5 out of 5]

A wonderful, thoughtful, and original look at 40 years of conservative legal activism, from someone who interviewed all the principals and has seen all the skeletons.

Although Steven Teles is on the left (he's a fellow at the New America Foundation), he's eminently even-handed in his analysis and descriptions, and he begins by showing the almost insuperable burden the right had to surmount when it tried to attack the legal left. Teles explains how the exodus of Catholic and Jewish lawyers from the New Deal to the rapidly expanding and improving law schools (the ABA started requiring minimum student-faculty ratios and full time deans in the early 1950s, and many faculties, especially at state schools, exploded by 50%) institutionalized a new legal intellectual orthodoxy. The number of lawyers working on minority and poverty programs as opposed to business law also exploded in this era thanks to much outside support There were Ford Foundation funded legal aid groups, legal aid clinics in law schools (12 to 125 in just a few years in the late '60s, including Ford funded "backup centers" to coordinate appeals), and the federal Legal Services Program (inspired by Jean and Edgar Cahn in New Haven and Edward Sparer in New York, all legal aid budgets went from $5 million in 1965 to just a federal budget at the LSP of $40 million in 1968), and the new requirement for states to provide for indigent defense in the 1963 Gideon decision. With this change main lawyers and law schools became the center of activist political movements that changed the way race and poverty were represented in the courts and in the profession. The ABA went from a group vigorously opposed to the New Deal to one actively supporting many Great Society programs.

The conservative attempts to reverse this movement fell flat at first. With funds from the California Chamber of Commerce and J. Simon Flour, the Pacific Legal Foundation was formed in 1973 to fight against the new regulatory onslaught coming from the courts, and its spawned other business-funded, regional "public interest" legal groups that mainly wrote amicus briefs and tried to please funders. When the Rocky Mountain Legal Foundation tried to sue a local cable monopoly in Denver, however, Joseph Coors and other businessmen pulled out. Early conservative lawyers realized that their funders in the business world were often tied in and happy working with the state, and so people like Michael Greves and Clint Bolick fled these groups to start conservative public interest firms without business ties dictating decisions (they founded the Center for Individual Rights (1989), and the Institute for Justice, respectively(1991)). These new groups began to have more success (such as in the 1999 Morrison case on using the commerce clause to strike down a federal gender law, the 2002 Simmons-Harris case allowing school vouchers, the 2006 Swedenberg case allowing interstate shipment of wine, and a host of others.

Teles also explains how starting in 1982 from a small group of Yale Law students such as Steve Calabresi, the Federalist Society grew to become a huge networking organization for conservatives, but one that diffused conservative differences by refusing to take stands on particular issues. Teles likewise explains how John M. Olin, a gun manufacturer distraught at the radicalism at his alma mater Cornell, began funding a growing number of Law and Economics programs in law schools to counteract the general liberal tendencies of the professors and inject more economic (and not coincidently conservative) thinking.

Teles wrote this book partially to argue against what he calls the "myth of diabolical competence" that often accompanies stories about the conservative movement. He shows its many missteps and failures, and acknowledges that while conservatism more common at law schools and courts than it was 30 years ago, it is still a distinct minority in the profession. Still, Teles shows how patrons, organization, ideology, and ideas can contribute to a shifting ideological terrain. It's a great work of history and scholarship.

[Paul Taske · Rating 4 out of 5]

Excellent, if sometimes lengthy, overview of how the conservative legal movement has grown and developed over the years.

I was particularly interested in the FedSoc and Public Interest Law chapters. But the whole book does a wonderful job of explaining how different aspects of legal thought (and effort) coalesced to give rise to a larger movement with influential institutions and organizations.

[Vladimir · Rating 3 out of 5]

1. Having read this book, I am more likely to go to law school than I was before. This is mostly due to spending hours thinking about jurisprudence, not the details of the content.

2. To the extent that I am considering law schools, I am now much more focused on elite rankings. Meritocracy's a fine ideal, but if diplomas with well known names on them make it a lot easier for others to trust me to do important things, then I'll have to go get one.

3. The Center for Individual Rights (CIR) is awesome. I had never heard of them before reading this book.

[Keith Wheeles · Rating 2 out of 5]

Thorough analysis of the rise of the conservative legal movement. Avoids writing as though all was achieved through an overarching clever plan - acknowledges the twists and turns. Written from a point of view sympathetic to conservatism, it handles many of its discussions using economic analysis and terminology. Economics takes a reductionist approach of isolating small sets of variables, considering the other dimensions of the problem as fixed (ceteris paribus), and focusing on the efficiency of the solution using the selected variables (without consideration as to whether market-efficiency is the desired outcome). This gives it a fine and understandable intellectual finish.
It is also very much 'inside baseball' - I am not an attorney, nor an admirer of today's conservatism, and I found it to contain more detail than I felt benefit from.
Most importantly for me, I believe many of the basic assumptions to be *wrong*. I am not a conservative, but I am not a Marxist either. I do think the law is, at some level, about power relations ('politics all the way down'). I find the phrase 'conservative public interest law' hard to digest at best, oxymoronic at worst. Many of the 'difficulties' the author describes seem that they could be described as 'few attorneys or aspiring attorneys agree with these views', but the book treats those as the uninformed who have not yet seen the light. I stand with those uninspired by the conservative legal movement.

[David Mccracken · Rating 4 out of 5]

Interesting look at the history of conservative law and how it got to where it is today. Particularly interesting is how it shows that the initial goals were not necessarily to build in a libertarian direction, but that, via trial and error, libertarian arguments succeeded in areas where conservative arguments failed. Similarly, the book shows how conservatives succeeded in giving economics a larger role in the law, but did not really succeed in making the resulting decisions conservative (as opposed to neoliberal).

Helped me understand, partially, what conservatives are actually trying to do with the law and how they view their successes and failures. Given their power in this area, at least for the short term, it is worth learning the history.

[Brian Glenn · Rating 5 out of 5]

This is truly a magnificent book! Through a compelling analytical framework, and clear writing, Teles tells the story of the rise of the conservative legal movement. This book will stand the test of time.

[Matthew Schreiner · Rating 2 out of 5]

Damn this boi dense.
If you aren’t specifically hoping to learn about the foundation of conservative legal organizations post-1960s, this will not give you much. If you are, this has every piece of information you will ever need :)

[Ali · Rating 2 out of 5]

for school
informative but a bit outdated

[Claire Stoltenow · Rating 4 out of 5]

Amazed by their ability to play the long game.

[Mia Isabella]

only read this for school lol

[Tony Petersen · Rating 4 out of 5]

Recently, I’ve been struck* by the response of the institutional Left and liberal and progressive writers toward the recent Supreme Court decisions, particularly Dobbs v. Jackson and West Virginia v. EPA. I am not surprised by the content of the response—of course liberals and progressives are unhappy with rulings championed and written by conservatives! I am surprised, however, by how this disagreement has been expressed. Namely, I have seen many writers bemoan the undemocratic nature of decisions which, from the conservative perspective, seek to remove policy prescriptions from the realm of judicial and executive fiat and return them to the prerogative of the federal and state legislatures—return them, that is, to the democratic process. (Yes, the House and Senate have been broken for some time, so I am sympathetic to the argument that something must be done in order to enact legislation. I just think that should be done according to constitutional processes, rather than bureaucratic maneuvering.) Basically, despite its political strength, the Left has found itself weak in the courts, where, because of the impotence of Congress, much power lies...

Read the rest here: https://tonypetersen.substack.com/p/t...

[Alex · Rating 5 out of 5]

I don't know how Teles managed to convince the conservative Olin Foundation to provide him with access to their archives, but the strength of the primary sources material underlying this book is clear. Teles chronicles how conservatives built their own organizations and networks in response to an entrenched liberal legal network, supported by key friendships and long-term funding from places like Olin. I was pleased to discover a book on an aspect of the right-wing movement that matches my theoretical perspective so well. He argues that without the legal infrastructure, a sympathetic administration is not enough to bring about, for instance, a conservative Supreme Court--there needs to be an ideology and a pool to draw from. As someone more interested in the conservative movement than the legal movement, my sticky notes predominate earlier in the book, but significant nuggets remain throughout.

[John · Rating 4 out of 5]

A pretty fascinating look at conseratives' ability to go from 0 to 60 in barely a generation. It's an academic book, so it's a bit dense in places, but it provides an "inside" institutional perspective that no one's ever done before.

[Wes · Rating 3 out of 5]

Interesting but not a light read.