Bunglers, Egos, and Law vs. Politics

by Mark Schmitt on April 28, 2009

“When we care about something, we waste money on it,” the political theorist Benjamin Barber once told me, an aphorism that came to mind frequently as I read The Conservative Legal Movement in America several months ago. On one level, sure, the book chronicles one of the most successful social and intellectual transformations in American history, and perhaps the only one that did not involve a mass movement. The Law and Economics project in particular had an influence far beyond the legal world, bringing the tools and priorities of neoclassical economics to bear on any question of policy, so that questions such as the appropriate level of regulation in financial markets were answered by the very framing of the question. It was an oversimplification, but not crazy, when someone said to me recently, “I want someone to write the whole story of everything that led to the financial crisis, starting with that whole Law and Economics thing.”

Yet on another level, TCLM is a story of wasted resources, of bungling and false starts, egos and overreach, in sharp contrast to the mythology of the “Conservative Message Machine Money Matrix,” to use the title of the PowerPoint presentation that was used to fire up liberal donors a few years ago. Like the PowerPoint, Teles starts from the now-famous, once-forgotten “Powell Memo,” Richmond lawyer and soon-to-be Justice Lewis Powell’s recommendations to a neighbor about how the U.S. Chamber of Commerce could respond to the emerging liberal public-interest legal community. He’s not alone in exaggerating the memo’s negligible influence (I tried to debunk the myth of the Powell memo in 2005), but he at least doesn’t treat it as the blueprint for all conservative organizing that followed. What every progressive in awe of the right’s past successes must understand is that there was no blueprint, no master plan, and no great planner. 

As Teles says at the end, what there was was a a willingness among the funders to take chances, to admit mistakes and yet not become paralyzed by them, and a practice among the funders, sometimes intentional, of “spread betting” on ideas and individuals, some of which would succeed and others fail, and others that would fail in the hands of one entrepreneur and succeed with another. And ultimately, it’s hard to avoid concluding that personality makes all the difference – that organizationally-minded, open and pleasant characters like Steve Calabresi of the Federalist Society succeed where passionate and complicated geniuses often fail.  Having worked at a liberal foundation, I often thought there was too much emphasis on personality, a “star system” in which a few people can get grants and lots of good ideas go unfunded, but there is quite a case to be made for the focus on individuals – so long as it is the right individuals in the right roles—as much as it goes against liberal instincts about meritocracy and equal opportunity. 

The chapter on the liberal legal movement was as revelatory to me as those on the conservatives, and I know other readers had a similar experience. In part this is because we are so accustomed to thinking of a grand conservative movement, against which the center-left was simply unarmed, that we forget that the conservative movement itself was a reaction against a liberal movement that had had its day – or more than its day, a whole era known as the period of “liberal consensus.” But we are not as conscious of that movement, because it seemed to operate so effortlessly within the broader trends of the day.

 I first became part of the “progressive infrastructure,” or movement when I went to work for a liberal foundation – George Soros’s Open Society Institute – in 1997, after a few years working in the Senate. I was amazed to realize how much of the liberal infrastructure was really a legal and litigation infrastructure: All those organizations whose names began with “Lawyers Committee for…” or ended with “Legal Defense Fund” were obvious, but many of the organizations with names that began “Center on…” or “Center for…,” like the Center for Law and Social Policy, had begun life as “support centers” for the legal services system. They were staffed by lawyers, or by economists and policy experts who provided facts to support legal arguments, and their primary method of social change was to use courts to force remedies for  injustices in housing, employment, health care, government benefits, and other fields.

By the late 1990s, all these litigation organizations were beginning to feel the limits of their legalistic theory of change, as well as practical limitations such as the restrictions on class action suits imposed by Congress. The organizations changed their names (the Lawyers’ Committees, a classic formulation from the 1960s now have catchier names like “Human Rights First”), or expanded their public relations efforts or joined coalitions with grassroots community organizations.

But it wasn’t simply a matter of changing names or finding partners. The liberal legal movement was built on certain assumptions about politics, or I should say, certain anti-political assumptions that made a lot of sense in the civil rights era: Politics was a stacked deck. The non-majoritarian Senate and the power of the South meant that the country would never step out of the shadow of states’ rights and into the sunlight of human rights. But Brown v. Board of Education provided a template for a court that could look beyond basic legal interpretation to the obvious reality, and get one step ahead of the political stalemate. And decades of organizing were based on that hope. The legal liberals didn’t view it as a movement, just a kind of manifest destiny – the courts could lead us to the founding vision of the country even if politics couldn’t.

But there’s a difference between courts being a step ahead of politics (and the Brown Court was not ahead of the country, even if it was ahead of 40 senators and the Southern committee chairs), and rejecting politics altogether. And as Gerald Rosenberg argued in The Hollow Hope, legal remedies hit their limits when they were far ahead of politics. More significantly, the window opened by Brown, to use empirical data and obvious outcomes to reach a constitutional result that was not as obvious within the airless confines of constitutional and statutory interpretation, closed quickly. And this was not the work of the conservative legal movement: Justices Breyer and Ginsburg, as well as liberals on the circuit courts, are as responsible as conservatives for narrowing the realm of the law to a fairly constrained and technical reading of statutes and their intents. Brown stands as the awkward exception: even conservatives can’t accept (or can’t admit that they could accept) a method of constitutional interpretation that does not allow the Court to outlaw segregation, but they are no longer willing to take its methodology as a template. 

 The liberal legal movement differed from its later conservative counterpart in its relationship to politics. The liberal movement was an evasion of politics, it was designed by people who, based accurately on the experience of the 1940s and 1950s, thought politics would never grant a large portion of this country’s citizens their basic rights as human beings. And so it magnified claims of rights – which are claims above politics – and then tried to convert other substantive claims, claims of distributive justice such as welfare or housing, into rights claims, above politics. And that is where it stalled.

The conservative legal movement had a different relationship to politics from the start. The sub-movements Teles describes – law and economics, the Federalist Society, and the conservative public interest law infrastructure – all viewed themselves as more or less aligned with the conservative political project from Goldwater through Reagan and beyond, which gained strength from seeing itself as a “remnant” taking on the established order. For  all the talk of originalism, they don’t make much pretense that the legal order they seek was separate from a political order. And while in the 1930s, conservative courts had thwarted liberal politics, with rare exceptions, this wasn’t how legal conservatives saw their role. And for the most part, the legal order they were pursuing just happened to coincide with the interests of the more powerful – on property rights, for example, or in law and economics.

 But an interesting lesson of TCLM is that the movement seems to have been most successful when it kept some healthy distance from politics. The Federalist Society maintains a nice and open spirit – a law student might join Federalist or at least go to some talks who would never in a million years be seen at a Young Republicans meeting. And the Law and Economics project seems to have succeeded finally when it situated itself within the Ivory Tower, inculcating professors into the heart of academia. It is not an arm of conservative politics, and there are liberals (for example, current Obama administration official Cass Sunstein) who have embraced some of the insights of Law and Economics. Here, too, the conservative legal movement differs from the caricature held on the left, which views it as an instrument of fierce ideological warfare, against which we have to fight back with discipline and intensity of our own, banishing the “squishes.” The successful efforts seem to have been much more open, benign, non-exclusive, and non-political than one would assume.

 The lesson of the book, then, is profoundly liberal. It is that a successful agenda-changing movement should be flexible, unpredictable, and open to politics without losing itself to short-term political goals, and that it’s funders should respect all that and be willing to waste a little money along the way.

{ 7 comments }

1

Barry 04.28.09 at 3:22 pm

“Having worked at a liberal foundation, I often thought there was too much emphasis on personality, a “star system” in which a few people can get grants and lots of good ideas go unfunded, but there is quite a case to be made for the focus on individuals – so long as it is the right individuals in the right roles—as much as it goes against liberal instincts about meritocracy and equal opportunity. “

I don’t see the conflict – they’re looking at who succeeds, which areas succeed, and in which combinations, and backing those. It’s rather meritocratic.

2

Barry 04.28.09 at 3:23 pm

“And the Law and Economics project seems to have succeeded finally when it situated itself within the Ivory Tower, inculcating professors into the heart of academia. It is not an arm of conservative politics, and there are liberals (for example, current Obama administration official Cass Sunstein) who have embraced some of the insights of Law and Economics. “

Cass is a liberal? Didn’t he endorse Alito?

3

Andy Vance 04.28.09 at 4:07 pm

The liberal movement was an evasion of politics…The conservative legal movement had a different relationship to politics

Well, not quite. The latter, particularly law & econ, asserts the impossibility (“proven” by Arrow’s theorem, rational voter paradox et al) of an unforced consensus about the public good. Politics is just another word for rent-seeking.

4

Orin Kerr 04.29.09 at 1:58 am

Excellent post, Mark.

5

John Quiggin 04.29.09 at 12:01 pm

I don’t think anyone yet has mentioned Roe v Wade, but it was surely the high water mark of the anti-politics strategy and remains a central point of division. It seems reasonable to say that Brown v Board of Education reflected a majority opinion among US voters in general, blocked by entrenched political power. Once the decision was made, there was no serious attempt to overturn it by legislative means – the segregationists only had a veto power, and the courts provided a way around it. After that, executive action and legislative measures like the Voting Rights Act completed the end of segregation.

By contrast, Roe v Wade was much less reflective of public feeling (ambiguous on such a fraught question, of course) and much more reliant on a vanguard view of the courts, which then had to reject lots of attempts at legislative reversal. In some sense, of course, the vanguard view was correct. A reversal of Roe vs Wade by the Roberts Court would probably not now result in effective restriction of abortion rights in most states.

It’s striking that quite a few conservatives influenced by the legal movement have been willing to accept the Vermont (?) gay marriage law because it was passed by the legislature. That’s not to say, of course, that these guys are consistent advocates of judicial restraint. In general, they’re happy to see Republican courts striking down Democratic legislation. But on an issue with such obvious echoes of Roe vs Wade, some of them do seem to be influenced by their own rhetoric.

6

Barry 04.29.09 at 6:55 pm

“It’s striking that quite a few conservatives influenced by the legal movement have been willing to accept the Vermont (?) gay marriage law because it was passed by the legislature.”

Or due to exhaustion, and the additional exhaustion of eight years of Bush + war, economic collapes and GOP troubles.

Frankly, I’ll believe any right-winger is against Roe vs. Wade purely on grounds of judicial quality when they spend as much time on Bush vs. Gore, or Santa Clara County v. Southern Pacific Railroad.

7

John Quiggin 04.30.09 at 9:24 pm

Barry, I get the impression that a fair proportion of movement conservatives in the legal movement are shmibertarians of the Glenn Reynolds variety, with more or less liberal views on social issues, but who have to maintain solidarity with the Christianist right. The “let the voters decide” line worked well at least as long as the voters decided the Republican way, and now it makes more sense to these guys to stick with it than to carry on the fight on a losing issue they don’t believe in.

Actually, Googling produces a partial refutation of my expectation: Reynolds takes the “let voters decide” line, but says Roe v Wade was properly decided.
http://www.msnbc.msn.com/id/13459465/

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