Response

Chapter One of The Rise of the Conservative Legal Movement opens with a quote from Stephen Skowronek, which I think sums up much of what I was trying to argue in the book: “Whether a given state changes or fails to change, the form and timing of the change, and the governing potential in the change—of these turn on a struggle for political power and institutional position, a struggle defined and mediated by the organization of the preestablished state.” In writing this book, Skowronek’s words haunted my own attempt to make sense of what was going on so many decades later. As Skowronek so powerfully argued, politics never starts from zero—it always starts somewhere . In order to make sense of what conservatives did, therefore, I needed to start with “the organization of the preestablished state.”

I am glad that so many of the participants in this forum took note of Chapter Two of the book, which explains the origins and development of the liberal legal network. It is easy—too easy—for liberals to see themselves as embattled and defensive, but in order to make sense of what conservatives did in the period under discussion, it is vital for us to recognize that they saw themselves, and with very good reason, as the insurgents against a deeply entrenched regime.

There is certainly a great deal of “agency” in my account, and a number of the participants in the forum draw attention to it. My book is full of entrepreneurs, people feeling around in the dark trying to figure out how to make headway against modern liberalism. They tried things, made mistakes, and then tried some new things. In making these decisions, their personal idiosyncrasies mattered, in some cases quite profoundly. But all of this entrepreneurship operated against the background of a powerful structure, that of the modern administrative state and the liberal legal network that grew up around it. Ultimately, I hoped to show that we should not think of “agency” and “structure” as rivals, or even as being mutually exclusive. As I state in the last paragraph of the book, “The constraints and structures of any particular period are, however, often the creation of a previous generation’s political agents. In the short term, politics is, in fact, a world of constraints, but to agents willing to wait for effects that may not emerge for decades, the world is full of opportunity.” Agents have to operate in a world of structures. But if they have a long time horizon, they can create new structures, which will then act to constrain the next generation of agents. And so on.

So, the book draws on three sets of theoretical tools—historical institutionalism (to explain the importance of inherited constraints and structures); resource mobilization theory in sociology (which explains the simple fact that an opportunity is no good unless there’s someone organized to exploit it) and; the literature on entrepreneurship and, as Gerald Ganz calls it, “strategic capacity” (which together explain that resources themselves are not as important as their effective and strategic deployment).

I note these multiple tools for a few reasons. First, we social scientists often get hung up on “testing” theories, when in fact theories may operate best as tools for helping us make sense of particular, time-bound phenomena—and a good social scientist, like a good carpenter, needs multiple tools, not simply one. Second, if we think about social science as at least partially engaged in a project of explaining particular, time-bound phenomena, then we are doing something not unlike what our brethren in history or journalism do. The difference, I think, is that we in fact have some very powerful tools that they do not. When we can manage to combine the historian’s diligence in digging around in archives and imagining the past as it was actually experienced, and the journalist’s nose for a story and capacity to coax sources to open up, with these theoretical tools, we can generate powerful—and even interesting!—findings. The more we can get in the habit of combining multiple methods and multiple theoretical tools (rather than fighting as to whose methods or tools are better) the better the accounts we can give of important parts of our lived social and political reality.

Before I get on to the specific commentaries on the book, I should first note that—wow, what a humbling group of commentators! Every author dreams of playing in the intellectual sandbox with such a group. This, more than anything, is the payoff from the labors and frustrations that go into a book like this. I’ll take no more than a stab at each of their commentaries.

In his essay, David Post questions whether historical knowledge is of any use in helping us make sense of what we should be doing now. “If and when I am transported back into the past, I promise not to repeat the mistakes that were made then – I’ll give Henry Manne a security detail, and tell them to keep him away from buses. But how that helps me, going forward into 2009, I fail to see.” Obviously, one cannot use what someone did at another time, under a different set of conditions, to tell us what to do today.

Thankfully, I didn’t make that claim, which is something that Rick Perlstein, with his usual acuity, picked up on. An analogy is only good insofar as the things being analogized are really comparable. Conservatives made mistakes when they unthinkingly replicated in one context something that had worked for them—or for their liberal foes—in a very different context. Carefully studying what someone else did can, at the least, help you avoid making old mistakes, but only an accurate and searching understanding of one’s own situation can prevent the making of all new ones.

Finally, many mistakes come from believing that you are learning from what someone else did, when in fact you are acting on a mistaken understanding of their actions. That was clearly the case for the first generation of conservative public interest lawyers, and also for many of the organizations that liberals created in the early 2000s. Genuinely learning from another organization’s experience, especially that of an opponent, requires the ability to enter into how the world really seemed to them, the conflicts and challenges they actually faced—but in most cases, ideologically-motivated actors lack either the connections or the imagination to go through this exercise.

Consequently, they concoct a “model” in their minds that may not have much if any relationship to reality. Where liberals understanding of conservatives is concerned, this is what I call the “myth of diabolical competence,” the belief that conservatives always knew what to do, had a fantastically detailed plan, were lacking in internal conflict, possessed infinite resources, etc. I will only note that I think that Rob Stein’s famous PowerPoint presentation on the conservative movement was a major victim of this myth, with very real consequences that are only gradually being unwound. If there’s any take-away point I hope liberals get from my book, it’s that the myth of diabolical competence is, indeed, a myth (and I appreciate Mark Schmitt for noting this as a central point of my book), and that conservatives’ mistakes, rather than its successes, may actually have the most to teach them.

Kim Morgan’s comments are great, so figuring out something to say requires nitpicking. Thankfully, nitpicking is an area in which I am genuinely expert. In the book, I argue that access to resources is less important in explaining success than what organizations do with those resources—I privilege strategy over raw resource mobilization. Like a lot of political scientists, Kim seems suspicious of this, especially given that I’m studying a movement that has at least the potential support of business—not a trivial thing in the United States. Kim says that “the basic fact remains that there are conservative foundations with enormous amount of money that they are pouring into conservative causes and institutions.” This is a point that is so commonly presented to explain the relative success of conservatives that I think it needs to be addressed directly. First, we need some clarity on what are “enormous amounts.” When I take a look at the list of the 100 largest charitable foundations in the US by assets (a very rough measure, to be sure, but at least a starting point), I get two (Kauffmann at #27 and Daniels at #51) that are moderately conservative, but not very. Only at #83 does one reach the Bradley Foundation, the sole foundation on the list that actively supports the conservative policy/media/academic infrastructure. Koch isn’t there for some fairly peculiar reasons, and Scaife would probably make it if all of its various foundations were reported together. That still leaves the overwhelming majority of the list in the hands of non-ideological foundations, or those with a liberal tilt (and in many cases more than that). Conservatives get money from sources other than large foundations, but the idea that conservatives are successful because they have a lot of money (relative to liberals) is hard to support empirically. If one wants to explain the difference in the effectiveness of the conservative policy infrastructure and that of liberals, the size of their pots of money is not the place to start—it’s what they do with it that matters.

So the disjuncture between Kim’s theoretical expectation of “business power” and what the data seem to show (as well as what my book argues historically) raises a first-order problem for the social sciences—if the wealthy have so much money, why does so little of it go to go to serve their class interests? First and foremost, business is a “they,” not an “it.” Business’ interests are heterogeneous, as well as being socially and ideationally constructed and highly dependent on what government happens to be doing. There are certainly sectors of business that have a directly conflictual relationship with government, but large swathes of business extract their living from government, have learned to use government against their competitors, or have reconciled themselves to its involvement in their operations. It was precisely this tension that created such significant problems for the first generation of conservative public interest lawyers, especially when they tried to challenge things like government-created monopolies (as the Mountain States Legal Defense Fund did, leading to its most important funder, Joe Coors, to quit its board).

Second, business, to use Marx’s distinction, may be a “class in itself” but it is not, in the absence of some form of external organization, a “class for itself.” Even if business had interests more objective and homogenous than I believe they are, that does not mean that they have the organizational wherewithal to act on them. Business faces the same collective action problem that other interests have, so the fact that individual businessmen have money doesn’t mean that they will necessarily put it into acting on their “class interests,” as opposed to, say, their aesthetic or recreational interests, or their desire to translate their money into social status. Third, the people who spend business-generated money are often not those who generated it, so there’s no reason to think that it will be spent to serve “business interests” (as opposed to the almost randomly distributed interests of wealthy people’s children).

There is no one whose judgment on political and organizational strategy I respect more than Mark Schmitt. It pains me, therefore, to have to begin my discussion of his essay with his comment that I “start from the now-famous, once-forgotten ‘Powell Memo’…” and that I am “not alone in exaggerating the memo’s negligible influence.” In Chapter Two, near the end, I do refer to the Memorandum as “seminal,” which is not as accurate as the word I use later, which is “notorious.” But in the actual discussion of the Memorandum in Chapter Three (pp. 61-62), I introduce it mainly to note that the first generation of conservative, business-dominated public interest law firms shared its strategic analysis—that conservatives could restore a lost legal equilibrium of judicial restraint by providing the “other side of the story” in court. I conclude that single paragraph on Powell by observing that his recommendations were a mistake (the same mistake that the firms that were actually created by conservatives in the 70s made). So…Mark, I agree with you! The Powell Memorandum reflected a line of thinking that was increasingly popular among certain businessmen, but it wasn’t a “roadmap” or a “blueprint” for much of anything, and the approach it recommended was a failure.

On to more important matters. Mark starts his essay out by quoting Ben Barber, to the effect that, “When we care about something, we waste money on it.” Yes, absolutely, but as Mark knows better than anyone, there are better and worse ways of wasting money. In my experience, liberal-ish foundations often waste money precisely by trying to be too “responsible” with the funds under their control. They make grantees write huge proposals, go through complicated “evaluations” that are often inappropriate to the fields of advocacy or scholarship, give money for individual projects rather than general support (which makes building a strong organizational culture almost impossible) and just generally infantilize and get in the way of their grantees. Conservatives did not waste their money this way. Rather, their waste came from what I call “spread betting” (a term given to me by Mark Blyth)—throwing money at a bunch of different projects, letting the grantees run with their idea, and then seeing which worked and then doubling down. With a few exceptions, the conservative foundations were not the real agents of the story—they didn’t concoct a lot of “initiatives” or put out “requests for proposals.” They found people who seemed like they knew what they were doing, and then gave them the wherewithal to show what they could do with the resources.

That, I think, is one lesson we can take from the conservative experience—people, not projects. That is, philanthropists may actually have the knowledge and the skills to evaluate an organizational entrepreneur, to determine whether she is a good bet (with the emphasis on the probabilistic nature of the term “bet”). They might be able to judge the surface plausibility of their broad strategy. There is no reason to believe that foundation program officers, on the other hand, have the capacity to sketch out grand strategic plans for the coordination of action that will have any likelihood of actually working out. This is what I think of as the philanthropic equivalent of Hayek’s “fatal conceit”—the idea that actors at the center have the knowledge to coordinate action beyond a fairly narrow compass. Even at their most aggressive point (when the Olin foundation was pushing for the creation of a law and economics program at Harvard, to beat back the left-wing “crits”), conservative philanthropists were reactive, in that they responded to concerns from the field (more traditional, anti-crit HLS faculty members) and encouraged the creation of a program that had been done elsewhere.

Better for philanthropists to limit themselves to supporting a broad range of organizational entrepreneurs, with only the thinnest of plans connecting them, and avoid weighing them down with requirements that might make sense from the 20th floor of a building in New York, but which are distorting at the organizational level at which the rubber hits the road. That is the right way to waste money.

Aaron Swartz wonders why those to the left of standard-issue Democratic liberals tend to be relatively invisible, especially as compared to political organizations on the right, which seem to offer more of a haven for those pretty far from the consensus of the sensible center. First of all, I think Aaron is right, as an empirical matter—the center seems to exercise a more powerfully magnetic pull on the left than it does on the right (among political organizations, that is—no one who has stepped on a university campus could think that the magnetic pull of the center is operative there). I think Aaron is right to think that the characteristics of rich donors are not the right place to start in trying to explain this relative imbalance. He wonders whether “the limiting factor isn’t the funders, but the entrepreneurs. The average lefty wants to do stuff, not hobnob with rich people and manage a staff. They’re not particularly cut out for organizational work nor do they hang around with the kind of people who are.” I’ll defer to Aaron on the features of the typical lefty. And I should note that there were certainly conservatives in my story who had little desire or aptitude for “managing a staff” or thinking about the mechanics of building and maintaining an organization (the founders of CIR, for example).

If you want to create a political organization that can last over the long-term, there really is no substitute for having a leader who thinks really carefully about how to make careful personnel decisions, motivate subordinates, listen to and try to shape the expectations of funders (aka “hobnob with rich people”), and advertise for the organization in a broader issue network. The scarcest commodity in elite political organizing is not money, but intellectually and politically motivated leaders who have the ability to effectively carry out these organizational tasks. In particular, to get back to Aaron’s point about money, it may be the willingness and ability of those on the left to ask in an effective and creative way for money that is the problem, not the willingness of wealthy people to give it if asked.

Jack Balkin is the reader that every author wishes he had. I honestly have nothing to say about the first 80% of Jack’s review, because it is such a fantastic summary of what the book was trying to do, especially where law and theories of legal change are concerned. I agree with Jack that my argument is much less tethered to grand cycles of change a la Ackerman, and more friendly to incrementalist theories like that presented by Jack and Sandy Levinson. When I wrote the book, I pointed to Sandy and Jack’s work as the best possible version of the “electoral theory” of legal change, which says that shifts in the behavior of courts are driven by changes in the composition of the presidency and Congress, which are reflection of social movements that shift parties’ positions over time. I sense from Jack’s response that our numerous lunches and his reading of my work convinced him that elections aren’t enough to construct a comprehensive theory of the kind he wants to produce. So, on that point, I’ll declare victory and get out.

Jack recognizes that, as his last couple of paragraphs indicate, once you admit that a great deal of legal change is not tethered to any sort of electoral cycle then you’ve reintroduced in another form the legitimation problem that his theory (and that of Ackerman) was designed to liquidate—that hardy law school perennial “the counter-majoritarian problem.” Jack observes, rightly, that, “Teles argues that what liberal scholars have tended to label ‘popular’ constitutionalism is actually a struggle between different sets of elites.” Precisely. And the problem for Jack is that there’s no particular reason to think that this sort of elite conflict can legitimate the exercise of judicial power on anything like a democratic basis—which is the basis that Jack’s work heretofore has been grounded on. If Jack and I are right, therefore, it may be that the entire project of “popular constitutionalism” is, at its core, flawed. Consequently, advocates of popular constitutionalism either need to call into question the empirical claims that I (and people like Charles Epp) have made, or they need to rethink their commitment to legitimizing a muscular role for the courts on the basis of democratic theory. I won’t pursue the matter further here, but I am positive that popular constitutionalists can’t succeed at the first task, and I have severe doubts that they will be much more successful at the second. At the very least, they’ll have to think deeply about whether they have a substitute for the “popular” piece of popular constitutionalism.

I can find very little to disagree with in Tyler Cowen’s contribution to this symposium. But I found his discussion at the end, on the students at George Mason University School of Law (GMUSL), worth commenting on briefly. As I understand it, Henry Manne had two objectives when he took on the task of creating a School of Law at GMU. I think that it is beyond question that he was successful on one dimension, in that GMUSL has created a home for libertarian (and, given its more recent hires, conservative) law professors, and in dramatically raising the prestige of the institution (starting from nearly zero in terms of prestige, GMUSL now regularly ranks in the Top 50—US News currently puts the school at #41, and Brian Leiter ranks the school at #35 in terms of student quality).

On the other hand, Henry had the objective of creating a law school that would break the mold, producing students qualitatively different than those of existing institutions. Tyler raises some questions as to whether, on this dimension, it has been successful. He observes that, “From my contact with the students, which by now is extensive, I have never noticed signs that I am in anything other than a standard law school.” I think that Tyler is probably right about this—and he knows more than I do!—and it suggests a pretty profound structural problem in the law school market. No matter how hard you try to set up a law school that will compete on a different margin than everyone else, students will judge that school by the same metric on which they judge every other institution. Students use the US News rankings to guide their choice of law school, and law firms use the rank of the law school (combined with their grades) as a proxy for raw intelligence. So students apply to law schools roughly without regard to whatever particular profile the school happens to be peddling. It may be that GMUSL students get a different sort of preparation around the edges than students at other schools, but for the most part not because they sought it out, or because it’s being demanded by the market.

The reason they’re given a different education, to the degree that they are, and the reason the faculty has a different character than at other law schools, is not due primarily to the market for and of students. Rather, GMUSL is different because of the market for faculty.

That brings me to Henry Farrell’s bracing response to my book. There is way too much to deal with in Henry’s essay than can be effectively addressed in this space, so I’ll deal with only one point—that the success of GMUSL cannot be explained through the tools of law and economics. I agree, and I think I say as much in the book. The “market for ideas” is, at best, an incomplete metaphor for understanding how intellectual change happens. As Henry rightly points out, there is an irreducibly sociological process that operates before anything that can be understood as market dynamics can kick in. Ideas and those who hold them come to either possess stigma or (to use Bourdieu’s term) distinction. They are thought of either as the sorts of ideas that reasonable, responsible people hold, or those that are believed by disreputable, unprofessional wackos. So how do ideas get “destigmatized?” That is, how do they enter into the legitimate marketplace for ideas?

What Henry Manne was trying to do in his seminars for federal judges and professors was only to a limited degree an exercise in persuasion—that is, convincing these important professional actors that he and his allies were right. What he was really up to was taking away the whiff of sulphur that law and economics had come to be associated with. The simple fact that judges were spending a few weeks learning about economics, and its applications to law, sent a signal to the rest of the profession that this was no longer (in Jack Balkin’s terminology) “off the wall,” since by definition an idea that federal judges take seriously is mainstream. Many law professors saw law and economics as strange and forbidding in a non-specific way, but in any case something that responsible people kept their distance from (and that they avoided where faculty hires were concerned). By subsidizing these professors to spend a few weeks hanging out with economists and law and economics practitioners, Manne’s programs gave these professors a name and a (hopefully friendly!) face to associate with the field. While they didn’t generate distinction (that would come later), they did take away stigma. And by doing so, they gave law and economics the opportunity to compete in a stigma-free market. I think that this two-stage process—destigmatization, then competition—actually applies to a much broader range of intellectual life than does the metaphor of the marketplace of ideas.

There could be no better place to end my response than with Fabio Rojas’ conclusion that, when considered in the broad sweep of history, the conservative legal movement has been a failure. I think that’s overstating matters considerably, but there is certainly something to Fabio’s point. In fact, I just published a co-edited book, Conservatism and American Political Development, that makes a somewhat similar point, arguing that when we look at the areas where liberal victories of the past were most deeply embedded (Social Security, K-12 education, the environment), what is striking is how little conservatives have achieved.

Whether we think the conservative legal movement has been a failure depends enormously on our standard for success. Fabio points to the Kelo v. New London case as an example of conservative failure. Was it? On the one hand, it was a great victory, in that the Institute for Justice got the case in front of the Supreme Court—a major victory of agenda setting. On the other hand, IJ lost. Turning to the aftermath of the case, on the one hand IJ was phenomenally successful, in that millions of people now have some conception that economic development takings might be a problem, and the subject got on the legislative agenda of a majority of states. On the other hand, as Ilya Somin (who worked with IJ on the case) notes, almost all of the post-Kelo legislation was useless, in many cases concocted by defenders of the status quo to give the public the impression of “action” where nothing real was being done. If IJ and its allies had more of a “ground game” in states across the country, they might have been able to move beyond “agenda setting” to “alternative specification,” but when faced with a force as richly funded, organized and tied to state and local political elites as real estate developers, perhaps failure was foreordained.

Conservatives have, across a wide range of areas, been impressively successful in putting new ideas on the political agenda that would have been considered crazy just a few decades ago. I am not at all sure that I agree with Fabio that the reason they have failed, however, is intellectual. While there certainly is an intellectual component of their limited success, I believe a more powerful explanation would look to the deeply embedded character of modern activist government. For example, conservatives actually convinced a lot of people that there were problems with Social Security, but could not get over the very big hump represented by the public’s reliance on the program, and the powerful organizations arrayed in its defense. In the case of Kelo, massive majorities of the public have been convinced that economic development takings are abusive, but the organizational asymmetry between their defenders and opponents is extraordinary. One could probably tell a similar story about school reform, which would be much less about ideas than about raw interest organization and policy feedback.

Modern liberalism has proven to be very potent as a device for protecting turf once won, but its failure to compete effectively in the realm of ideas has—at least until recently—limited its ability to win new ground. Modern conservatism, by contrast, has pushed ideas out of the realm of stigma and into the mainstream of policy debate, but has proven incapable of mustering the troops in areas beyond its constituencies’ core interests (like taxation and national defense) to take ground from its opponents.

The conservative legal movement, therefore, can be seen both as a case of the opportunities for elite mobilization, but also of its limits. Modern conservatism has waged, in Skowronek’s terms, “a struggle defined and mediated by the organization of the preestablished state.” Where that state has been most deeply dug in, conservatives have accomplished the least. That conservatives’ got so little when they attacked the citadel of modern liberalism may be counted a failure. But it should not have been a surprise.