One of the impressive things about Steven Teles’ book is that it helped orient me better about the apparent implications of my own work. When I wrote Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, the notion that, in narrating the capture of the Republican Party by the conservative movement, I was offering advice to progressives (like me) about how to seize national power themselves, was distant in my mind if it was present at all. The exigencies of commercial promotion (a perhaps over-glib framing of the book as an allegory for liberals) and an accident of history (the cult-following the paperback developed among progressives wrapped up in the nascent Netroots and Howard Dean movements) led to the book being read rather narrowly: as a universally applicable “movement” blueprint. Not infrequently I would receive phone calls and emails from avid left-insurrectionists for practical advice as to how a “progressive infrastructure” to match the conservative one built through and after the Goldwater campaigns. Not infrequently I would convince myself I had plenty to say on the subject—though not without ambivalence. When, of all extraordinary things, I was invited to address the Senate Democratic caucus on “building a progressive idea infrastructure,” I said what I pretty much still believe: interests, not ideas, have much more motor force in politics. Ideas are fine, but if anything progressives have too many ideas. But deliver some more middle class entitlements like free healthcare, I argued, and Democrats will really be on their way to a restored hegemony.
One of the things I was groping to express, I now realize—have been groping to express ever since—is that as ideological tendencies “left” and “right” are never symmetrical. Somehow “copying” the methods of one to deliver the other to glory is dumb. “Left” and “right” are not functions of each other but ontologically distinct categories (for an explication of this idea see here); what’s more—even more—their histories are institutionally embedded, not merely path dependent but radically path dependent. Teles makes this fact the analytic payoff of his study.
It shouldn’t be news to activist: to win any fight, first you must understand your enemy. “The most successful conservative projects,” Teles points out, were “responses to the character of liberal entrenchment.” His portrait of how that entrenchment evolved and obtained hegemony in the legal world—the “Liberal Legal Network”—is solid and convincing. One of Lyndon Johnson’s legislative creations—the Legal Services Corporation—becomes the nation’s preeminent “strategic litigant,” submitting 169 cases to the Supreme Court be tween 1966 and 1975, with a higher acceptance rate than the solicitor general. More and more, all sorts of actors seeking social change following the opportunities offered them by an activist Warren Court, availing themselves of the blunt instrument of federal litigation. One by one, we see a set of institutions responding to and magnifying the change: Congress expands the ambit of justiciability and enhances the categories protected under civil rights law. The American Bar Association comes to frame “legal liberalism as a philosophy of modernization and process.” Clinical education is institutionalized by the post-’60s generation, not incidentally as a liberal project, transforming constitutionally conservative institutions—Ivy League law schools—into beachheads for liberal, even radical, policy-making—on the death penalty, on the prison system, on land use, on welfare rights.
This echt-institutionalist even slips in a bit of cultural history: the new genre of glossy law school admissions brochures that depict the federal courts as the Lexington-and-Concord, the Runnymede, the Selma of the 1970s: the very frontier of justice and freedom. The “once low-rent area around Dupont Circle [facilitating] the opportunity for frequent interaction.” The terrain of the law has been transformed; the Footnote Four Generation is at its high tide, institutionalizing a “progressive vision of history.” The Ford Foundation plays a critical one, but one that reveals an unanticipated tension. We see MacGeorge Bundy and his board trying to convince funders and tax lawyers that the politicization of a generation of lawyers isn’t political; and those same lawyers defining their function ever more politically—even as their professors reject their liberal “predecessors’ obsession with the ‘counter-majoritarian difficulty,” and also oblivious to “the substantial costs these imposed on business and local governments.”
We see, in other words, a textbook example of top-down social change, the mild psychological imperialism taken on by the phrase “public interest,” and feel empathy for the particular sense of dispossession this particular aspect of the New Politics inspired among conservative elites—who, if there were to be oligarchies, were used to being the oligarchs themselves. As actors in history, liberal lawyers find themselves in just the position Lao Tzu wants to see a successful army: taking the fight where the enemy least expects it, where they are most unprepared to fight back. “The power of this network came in large part because of the weakness of its opposition in case after case…marked by their intellectual superficiality, their almost total lack of agenda control, an absence of information, and a vacuum in support from professional elites.”
The rest of the book narrates the legal right’s s fumbling response, and shows both their failures and successes as structurally telling. Arrangements that spoke to this strategic situation—and, as Teleas writes, “were adaptations to specific weaknesses of the conservative movements”—succeeded. Arrangements that did not proved failures. “To the degree that liberals invest resources in replicating conservative organizations designed for problems different from the ones they face today, they will waste money, time, and human capital.” This is an excellent lesson.