Legal Conservatives as Closet Gramscians

The first thing to be said is that Steve Teles has written a terrific book.  The Rise of the Conservative Legal Movement tackles a topic of vital importance, is exhaustively researched and documented, and offers thoughtful and nuanced arguments that, for the most part, persuade.  The book also achieves the rarely achievable: it bridges the divide between academia and, for lack of a better term, non-academia, offering a theoretically rich account that draws on historical institutionalism, organizational theory, and the sociology of knowledge, while also supplying much red meat for political columnists and combatants from across the ideological spectrum.  I especially appreciated his desire to pry open the black box of organizational dynamics, looking not only at why the conservative legal movement has had many successes, but how it has done so, with attention thus to the crucial ingredients of money, leadership, luck, and learning that contributed to these successes.  I also learned a great deal about both the conservative legal movement and American politics in the late 20th century.

I could continue to pile on the accolades, as many scholarly and popular commentators have done, but given that this is a book seminar that aims to stimulate debate, I will move on to a few critical observations. Perhaps unfortunately, these observations come from someone who knows little about the law and so I will have to approach the book from the standpoint of a political scientist attuned to the structure of theoretical and empirical argumentation. From this perspective, the book offered a good many insights but also left me with some questions.

One of the things that intrigued me about this book was the Gramscian edge to Teles’s analysis, by which I mean the way he conceptualized the problem facing conservatives as a subset of a more general challenge for social movements that seek to combat hegemony. Powerful groups entrench themselves not only through electoral power, but through domination of the major institutions of a society – educational, financial, professional, media, cultural, and so on. Their ideas and way of life thus come to seem normal, natural, inevitable. For insurgents, be they Islamic militants in Pakistan today, communists in early 20th century Italy, or conservatives in the 1960s United States, they must not only battle political domination head on but construct a parallel universe of institutions that steadily erodes the power of dominant groups throughout the society, economy, and polity. In many ways, this framework fits the case of the conservative legal movement, and conservative movement more generally, as activists have challenged liberalism not only through electoral mobilization, but through the construction of an alternative civil society: private schools or, barring that, home schooling; universities and law schools; foundations, a number of which are discussed in this book; and media programs and outlets, to name some examples.

The basic question this raises is how these kinds of anti-hegemonic movements emerge and why they sometimes succeed. There are plenty of movements that pop up around discrete causes, but fewer successful movements that take on some of the basic premises on which a society operates. Such movements should be especially rare given that they must develop a long-term strategy and have only weak prospects for success, as Teles describes early in the book. Activists wander in the wilderness with vague glimmers of hope for any real impact on the world they live in. So what gives rise to these movements and why do they sometimes succeed?

Teles’s answer often hinges on fairly idiosyncratic factors: key individuals who found themselves at the right place at the right time; smart decisions or the ability to learn from past mistakes; funders willing to support the movement at important junctures. There’s no grand strategy, at least in the beginning; instead, individuals construct networks and institutions that beget resources for the creation of yet more networks and institutions. Teles thus focuses a good deal on agency, but as a result gives less attention to the structural side of the structure-agency divide. Where he pays most attention to political opportunity structures is in examining the Liberal Legal Network as the structure against which conservatives react, and he also notes some important shifts in American politics that increase the importance of elite political competition. Beyond that, Teles does not spend much time examining other political opportunity structures that might make the conservative legal movement more or less likely to emerge and succeed.

Given the seeming success of the larger conservative movement – if not always in concrete policy terms, then in blocking further change along liberal lines and in constructing alternative political and social institutions – I wondered whether there are greater forces at work here beyond these individual agents. One could cynically argue that money is behind it all: conservatives often represent a point of view that business and people with means like; thus, the mobilization he describes could be analyzed, as David Vogel has done, through the lens of the business reaction against the regulatory state since the 1970s. Teles intriguingly argues that legal conservatives often achieved more when they got away from seeming to be in the pocket of business. Still, the basic fact remains that there are conservative foundations with enormous amount of money that they are pouring into conservative causes and institutions.

I also am less willing than Teles is to jettison electoral factors in explaining the rise of the conservative legal movement. I wholeheartedly buy his argument that there is no direct linkage between electoral success and legal change: the lag time for legal movements to bear fruit shows there is no easy connection between the two. I would posit a more indirect connection however, as electoral victories such as that of Reagan in 1980 galvanized the movement and made credible conservative ideas that had been largely rejected in 1964 when espoused by Goldwater. Moreover, had liberal Democrats not only taken over the party by the 1970s but also continued to win elections, they would have continued to shape the judiciary along liberal lines and taken other hegemony-building measures that would have made it that much harder for conservative challengers to gain a foothold.

More generally, the right-ward shift of the Republican party since the 1970s and its electoral successes since then show that there is a deep well of conservatism in American society that is there to be tapped. Whether that well is fed by cultural beliefs about free markets and individual rights, economic power relations that favor business over labor, defenders of local political authority in a federal system, or some other source, the fact remains that conservatism has long been a powerful force in American politics and has had renewed influence since the 1980s. The conservative legal movement is one arm of that larger force that has been particularly successful because of the way the law offers an access point for social change in the US. The question I would thus pose to Teles and the readers of this symposium is how we can understand the relationship between the larger structural or contextual forces at work here with the individual actors who worked on the ground to effect change.

A final question I would pose concerns how best we can think about anti-hegemonic movements and their leadership. Gramsci wrote at a time when centralized, hierarchically-organized communist parties fought against bourgeois domination. They had leaders, they had foot soldiers, they had a vision of how economic and political change would occur. By contrast, the creature Teles describes is a headless one with a large number of appendages, sometimes waving in unison, sometimes moving in uncoordinated ways. There was no vast, right-wing conspiracy, but a confluence of events and people that moved the society and the law down a particular pathway. This may be a more realistic account of how movements work in practice, but I wanted to know how we should think more generally about why some movements succeed where others do not. How can a movement achieve its goals when it has no center, no unified leadership, and often no coherent and agreed-upon strategy? Perhaps this is where the conservative example can make liberals optimistic about their own prospects for achieving social and political change.