How Conservatives Won the Law

conservatives won law

By Jason Willick, The Wall Street Journal, July 21, 2018

When I was a freshman at the University of California, Berkeley in 2011, the College Republicans announced plans to hold an “Increase Diversity Bake Sale.” The idea was to offer minorities and women discounts on cupcakes while white males would pay full price. This led to an emergency meeting of the student government and widespread calls to defund the group or shut down the event. For its organizers, that alone made it a wild success.

“Affirmative-action bake sale conservatism,” as Steven Teles calls it, has an intellectual legacy dating back to the 1960s. Influenced by the counterculture left, activists aim to provoke a crackdown on conservatives, thereby exposing elite education as a coercive “hegemonic project” that represses disfavored ideas. A more familiar term for this, he says, is “trolling.”

Mr. Teles, a professor of political science at Johns Hopkins University, is more sympathetic to a different model of conservative campus activism, epitomized by the Federalist Society. Instead of seeking to embarrass liberal institutions, the goal is to build conservative ones with social and intellectual resources sufficient to compete directly. In his 2008 book, “The Rise of the Conservative Legal Movement,” Mr. Teles chronicles how a coalition of right-leaning law students in debating societies managed, over a few decades, to dethrone liberalism from its dominant position in legal thought. Assuming Judge Brett Kavanaugh is confirmed, judges influenced by this project will soon constitute a majority on the Supreme Court.

Liberals, as they defend their domain, insist that the conservative legal movement is the product of a deep-pocketed conspiracy and that its ideas are fronts for power and greed. Mr. Teles, although a liberal Democrat, wrote his book partly to challenge these preconceptions. “Liberals have this myth of diabolical conservative competence,” he tells me. They imagine their own side as “bumbling . . . but benevolent” and the right as “evil” but “totally farsighted and competent.”

The main achievement of the conservative legal movement, Mr. Teles says, hasn’t been fundraising but education, study and debate. The Federalist Society’s premise is that “we’re going to be smarter than the liberals,” he adds. “We’re going to be more bookish. We’re going to be more intellectual.” Conservative law students would “go down to first principles” to show that liberal students “can’t even describe why they’re in favor of what they’re in favor of.” Many of the early Federalist Society members were former liberals; their goal was to “draw people in” as they had been drawn in, by demonstrating “how thoughtful and how intellectual that project is.”

Assisting presidents with judicial appointments is a tiny fraction of the group’s activities. “If you add up all of the hours of everyone who works in the Federalist Society, overwhelmingly, it’s running debates and speakers,” Mr. Teles says. While it has a robust fundraising operation, “most of the Federalist Society is basically done by pro bono contributions” from “people who are running chapters all over the country” for students, faculty and lawyers. The fundraising is merely “a multiplier force for all of the stuff people are doing that’s really voluntary activity.”

What motivates these millions of hours of intellectual legwork? Mr. Teles says it’s a conservative response to the “entrenchment of liberalism” in the legal ecosystem. Through the first half of the 20th century, groups like the American Bar Association were conservative in the sense that they were controlled by a risk-averse WASP elite. But amid the Cold War and the social unrest of the 1960s, the legal establishment—like the educational establishment—decided it needed to move leftward to retain its legitimacy. It began to throw its weight behind representation for the unlawyered, while backing liberal groups like the Environmental Defense Fund, the NAACP and the Mexican American Legal Defense and Education Foundation. At the same time, law schools were on a hiring spree, and young professors tended to lean left.

In the decades after World War II, “a new kind of legal establishment” was created, one that saw social justice as a core element of its mission. This was a double-edged sword. Even as “the establishment got liberalized,” Mr. Teles says, “liberalism got establishmentized.” Avowed liberals wound up “running things that were not supposed to be at least openly ideological”—not only the bar, but universities, the prestige press and other elite institutions.

“Liberals got power because they got control of professional venues.” As a result, they fell back on appeals to authority, or what Mr. Teles calls “hiding the ball.” Rather than arguing against conservative ideas on the merits, they claimed their opponents were “violating expert knowledge.” He cites the popular assertion by corporations and universities—and the Supreme Court, in decisions involving racial preferences in admissions—that diversity is merely a matter of “good professional practice” rather than social justice.

As liberalism got “institutionalized into the common sense of the professions,” Mr. Teles says, the first challenge for conservative lawyers was simply to “demonstrate that there’s something ideological going on”—that the legal orthodoxy was based on not neutral expertise but a particular view of the world. They then had two options for how to respond: attack and try to dismantle this “professionalism and expertise,” or work to “conservatize” it.

The Federalist Society took the latter approach, partly because its members believed in persuasion and partly by necessity. Conservatives started winning elections in the Nixon era, but political power was not enough to dislodge the legal establishment. Efforts to “defund” liberal legal organizations by changing their tax status failed. Judges appointed by Republicans tended to be swept along by the dominant currents of legal thought, with no rock of alternative scholarship to cling to. The conservatives’ only real option was to build an intellectually vital counterestablishment from the ground up.

Mr. Teles believes that the “Trumpified Republican Party” is an “existential threat to liberal democracy.” But he did doctoral and postdoc work under conservatives, including Martha Derthick at the University of Virginia, Robert George at Princeton, and Harvey Mansfield at Harvard. While he disagrees with conservatives on most matters of policy, he is sympathetic with some of their insights about how to structure a political system.

“There are certain people in the academy who I think of as untempered lovers of liberal democracy—who believe that the answer to all of the problems of liberal democracy is more liberal democracy,” he says. “I tend not to be.” This makes him “appreciative of the importance of constitutionalism,” because “democracy needs to be powerfully structured for it to work effectively.”

Whereas conservatism has a fairly coherent ideology, Mr. Teles says, liberalism “is more organized around these siloed . . . claimants on state action”—feminists, environmentalists, public-sector unions, professional organizations and ethnic minorities, among others. This makes it difficult for liberals to develop a legal philosophy that “isn’t just derivative of whatever the various coalition actors want.” Mr. Teles says they are tempted instead to think: “Well, whatever we do has got to be backward-compatible with every coalition actor we’ve got.”

Mr. Teles also worries that the progressive vision has ended up creating “a constitutionalism of complete formlessness where economic governance is concerned.” This “anything-goes constitutionalism” can corrode democratic government over the long run by enabling special-interest capture of the policy-making process. “There’s a good argument for constitutional norms around economic activity,” he says, because “concentrated interests mobilize” and “diffuse interests don’t.” Courts can prevent legislators and regulators from distorting markets in ways that favor the well-connected.

That’s especially true where the administrative state is concerned. One defining feature of conservative constitutionalism is its skepticism of the scope of authority held by regulatory agencies like the Environmental Protection Agency and the Consumer Financial Protection Bureau. “There’s a lot of market failure out there,” Mr. Teles says. “There’s a lot of role for regulation.” But he worries that correcting market failure via “the unconstrained transfer of congressional power to the administrative state” destroys accountability. “Congress should act like a legislature,” he insists. “They should have to own the responsibility for what they do.”

Mr. Teles makes sure to emphasize that his sympathy with the conservative legal movement here grows out of not his policy preferences, which lean left, but his belief in the importance of a “powerfully structured” constitutional system. “I don’t think the purpose of the Constitution is to get a government so small you can drown in a bathtub,” he says. Rather, it is to ensure the government “is democratically responsible.”

Mr. Teles believes that one of the most salient projects for the newly conservative Roberts Court will be to roll back administrative-state prerogatives. That could revitalize Congress and restore the constitutional structure, vindicating two longtime goals of the conservative legal movement. But he thinks this could also end up serving certain policy ends of progressives.

For the past several decades, Mr. Teles says, many progressive victories in the economic realm have been achieved through “administrative jujitsu”—difficult-to-understand maneuvers involving taxes, fees, mandates, regulations, and administrative directives. If courts start to block technocratic liberal plans for social reform because they violate the separation of powers, the left may find it easier to mobilize for pure redistribution as an alternative. Think of postal banking instead of CFPB regulation, or a carbon tax instead of the Obama administration’s Clean Power Plan, or a reduction in the Medicare eligibility age instead of ObamaCare subsidies and exchanges.

That might be good for democratic discourse, Mr. Teles suggests. “In some ways liberalism has been deformed” by relying on administrative agencies, “as opposed to making big arguments for big, encompassing social programs.” In the short term, though, conservative courts will probably prove “radicalizing for the left.” Democrats may fully jettison Clintonism and say: “We’re going straight for socialism.” Steeply redistributive programs enacted by legislatures would be “easier to defend in court,” even a conservative court, than unaccountable bureaucratic diktats.

It’s tempting to attribute the triumph of the conservative legal movement entirely to the Federalist Society’s model of intellectual excellence and persuasion. But Donald Trump’s presidential campaign owes more to the diversity-bake-sale style. The Supreme Court will likely soon have a conservative majority both because conservatives integrated themselves into the legal elite and because Mr. Trump launched a scorching and politically successful attack on America’s establishment from the outside.

Yet the Supreme Court, Mr. Teles says, will be interpreting the Constitution on behalf of an American people whose views on what the document requires are, in important respects, almost “entirely nonoverlapping.” One of the functions of a constitution is to “lower the stakes of politics” by making certain rights nonnegotiable. That way, the factions don’t “start thinking they’re existentially threatened by the rotation of power.”

This function is undermined if Americans have “two constitutions,” Mr. Teles says. To build something like the consensus constitutionalism that is ultimately necessary for our democracy to function, conservatives need more Federalist Societies and fewer bake sales. Liberals, for their part, need to listen less to anything-goes legal activists and more to thinkers like Steven Teles.

Mr. Willick is an assistant editorial features editor at the Journal.

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