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    The Rise of the Conservative Legal Movement: The Battle for Control of the Law
    The Rise of the Conservative Legal Movement: The Battle for Control of the Law
    The Rise of the Conservative Legal Movement: The Battle for Control of the Law
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    The Rise of the Conservative Legal Movement: The Battle for Control of the Law

    By Steven M. Teles

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    Starting in the 1970s, conservatives learned that electoral victory did not easily convert into a reversal of important liberal accomplishments, especially in the law. As a result, conservatives' mobilizing efforts increasingly turned to law schools, professional networks, public interest groups, and the judiciary--areas traditionally controlled by liberals. Drawing from internal documents, as well as interviews with key conservative figures, The Rise of the Conservative Legal Movement examines this sometimes fitful, and still only partially successful, conservative challenge to liberal domination of the law and American legal institutions.


    Unlike accounts that depict the conservatives as fiendishly skilled, The Rise of the Conservative Legal Movement reveals the formidable challenges that conservatives faced in competing with legal liberalism. Steven Teles explores how conservative mobilization was shaped by the legal profession, the legacy of the liberal movement, and the difficulties in matching strategic opportunities with effective organizational responses. He explains how foundations and groups promoting conservative ideas built a network designed to dislodge legal liberalism from American elite institutions. And he portrays the reality, not of a grand strategy masterfully pursued, but of individuals and political entrepreneurs learning from trial and error.


    Using previously unavailable materials from the Olin Foundation, Federalist Society, Center for Individual Rights, Institute for Justice, and Law and Economics Center, The Rise of the Conservative Legal Movement provides an unprecedented look at the inner life of the conservative movement. Lawyers, historians, sociologists, political scientists, and activists seeking to learn from the conservative experience in the law will find it compelling reading.

    LanguageEnglish
    PublisherPrinceton University Press
    Release dateJan 16, 2012
    ISBN9781400829699
    The Rise of the Conservative Legal Movement: The Battle for Control of the Law

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      Book preview

      The Rise of the Conservative Legal Movement - Steven M. Teles

      The Rise of the

      Conservative Legal Movement

      The Battle for Control of the Law

      Steven M. Teles

      Starting in the 1970s, conservatives learned that electoral victory did not easily convert into a reversal of important liberal accomplishments, especially in the law. As a result, conservatives’ mobilizing efforts increasingly turned to law schools, professional networks, public interest groups, and the judiciary—areas traditionally controlled by liberals. Drawing from internal documents, as well as interviews with key conservative figures, The Rise of the Conservative Legal Movement examines this sometimes fitful, and still only partially successful, conservative challenge to liberal domination of the law and American legal institutions.

      Unlike accounts that depict the conservatives as fiendishly skilled, The Rise of the Conservative Legal Movement reveals the formidable challenges that conservatives faced in competing with legal liberalism. Steven Teles explores how conservative mobilization was shaped by the legal profession, the legacy of the liberal movement, and the difficulties in matching strategic opportunities with effective organizational responses. He explains how foundations and groups promoting conservative ideas built a network designed to dislodge legal liberalism from American elite institutions. And he portrays the reality, not of a grand strategy masterfully pursued, but of individuals and political entrepreneurs learning from trial and error.

      Using previously unavailable materials from the Olin Foundation, Federalist Society, Center for Individual Rights, Institute for Justice, and Law and Economics Center, The Rise of the Conservative Legal Movement provides an unprecedented look at the inner life of the conservative movement. Lawyers, historians, sociologists, political scientists, and activists seeking to learn from the conservative experience in the law will find it compelling reading.

      Steven M. Teles is associate professor of public policy at the University of Maryland and visiting lecturer at Yale Law School.

      PRINCETON STUDIES IN AMERICAN POLITICS:

      HISTORICAL, INTERNATIONAL,

      AND COMPARATIVE PERSPECTIVES

      Ira Katznelson, Martin Shefter,

      and Theda Skocpol, Series Editors

      Jacket design by Marcella Engel Roberts

      Jacket illustration by Marcella Engel Roberts

      Original jacket photo © Shutterstock.com/

      Timothy R. Nichols

      Altered jacket photo and photography

      by Marcella Engel Roberts

      "The Rise of the Conservative Legal Movement provides an essential road map to the organizational mobilization of conservatives over the past quarter century."

      —Al Gore, corecipient of the 2007 Nobel Peace Prize

      Steven Teles’s deep, meticulous study of the successes and failures of the conservative legal reform movement illuminates the politics of law like nothing else in the literature. Combining original reporting, political theory, and institutional analysis in just the right proportions, his bold and deliberate investigation leads to a bracing conclusion: idealism, risk taking, patience, and devotion to the intrinsic merits of ideas are not secondary, but essential to the discovery of successful political strategies.

      —Christopher DeMuth, president of the American Enterprise Institute for Public Policy Research

      In this deeply informative and engagingly written book, Teles credits, as many academics refuse to do, the possibility that the success of the conservative legal movement is to be explained in part by the intellectual force of conservative arguments. His fair-mindedness is praiseworthy not only for its own sake, but also for enabling him to produce a more accurate and refined account of the remarkable phenomenon he seeks to understand.

      —Robert P. George, Princeton University

      A timely and important book. Drawing on inside accounts from key players, Teles tells the remarkable story of how conservatives overthrew liberal legal assumptions; more importantly, he shows how successful ideas depend on building organizations, institutions, and networks to propagate and defend them.

      —Jack M. Balkin, Yale Law School

      "The Rise of the Conservative Legal Movement is a terrific, pathbreaking book, and Teles tells the story with verve, clarity, and elegance. Through the quality of its argument and evidence, this book will become the standard authority on the conservative movement in law."

      —Charles Epp, author of The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective

      "The Rise of the Conservative Legal Movement is the rare ambitious book that succeeds in presenting both the theory and the details. It offers compelling arguments about entrenchment and countermobilization, organizational strategies and institutional maintenance. It provides vivid pictures of particular organizations, entrepreneurs, and controversies. And it tells instructive stories about failures as well as successes. Useful and important, broad and convincing, this is a great book."

      —R. Shep Melnick, Boston College

      THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT

      PRINCETON STUDIES IN AMERICAN POLITICS:

      HISTORICAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVES

      Series Editors

      Ira Katznelson, Martin Shefter, Theda Skocpol

      A list of titles in this series appears at the back of the book

      THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT

      THE BATTLE FOR

      CONTROL OF THE LAW

      Steven M. Teles

      Copyright © 2008 by Princeton University Press

      Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540

      In the United Kingdom: Princeton University Press, 6 Oxford Street, Woodstock,

      Oxfordshire OX20 1TW

      All Rights Reserved

      Library of Congress Cataloging-in-Publication Data

      Teles, Steven Michael.

      The rise of the conservative legal movement : the battle for control of the law / Steven M. Teles.

      p.  cm. — (Princeton studies in American politics : historical, international, and comparative perspectives)

      Includes bibliographical references and index.

      ISBN 978-0-691-12208-3 (cloth : alk. paper)

      1. Law—Political aspects—United States. 2. Law—Economic aspects—United States. 3. Justice, Administration of—United States. 4. Conservatism—United States.

      5. Liberalism—United States. I. Title.

      KF385.T45     2008

      340′.11—dc22        2007040836

      British Library Cataloging-in-Publication Data is available

      This book has been composed in Sabon

      Printed on acid-free paper. ∞

      press.princeton.edu

      Printed in the United States of America

      10   9   8   7   6   5   4   3   2   1

      For FSA, whose faith and patience, never wavering, sustained me.

      Contents

      Acknowledgments

      Introduction

      1. Political Competition, Legal Change, and the New American State

      2. The Rise of the Liberal Legal Network

      3. Conservative Public Interest Law I: Mistakes Made

      4. Law and Economics I: Out of the Wilderness

      5. The Federalist Society: Counter-Networking

      6. Law and Economics II: Institutionalization

      7. Conservative Public Interest Law II: Lessons Learned

      Conclusion

      Appendix

      Interviews

      Notes

      Index

      Acknowledgments

      IN WRITING THIS BOOK, I have acquired more than the usual authorial debts. My parents were this book’s earliest and most important patrons. They lavishly invested in my human capital and provided a vital in-kind subsidy to the research process—if they lived outside the Washington Beltway, I could not have afforded my many research trips to D.C.

      I drafted chapters 3 and 7 while a fellow at Princeton University’s James Madison Program, and I owe a special debt to Professor Robert George, an organizational entrepreneur of unusual skill as well as a true intellectual. Yale University provided me a wonderful home for the last year and a half of writing this book. I would like to thank Yale’s Alan Gerber, whose Center for the Study of American Politics provided me a fellowship in 2005–6 (which was partially devoted to this project), and Dan Kahan, who as Associate Dean helped arrange for me to teach at the Law School in the fall of 2006. The Achiles and Bodman Foundation provided a very generous—and timely—grant for the 2003–4 academic year that helped fund my nonsabbatical leave, and the Earhart Foundation provided summer and research support for the project. I would never have completed this book without this support.

      I also owe a debt to my many sources within the conservative movement. Pride of place goes to Eugene Meyer of the Federalist Society, who provided my first real breakthrough in obtaining internal organizational documents. Gene was under no obligation whatsoever to provide me the remarkable access that he did—I still recall being pointed to the file cabinet, in a cramped closet in the Society’s offices, and being told that it was mine to rummage through. Thanks are also due to Steven Calabresi, David McIntosh, Lee Liberman Otis, and Gary Lawson, who subjected themselves to interviews, follow-ups, and reading an early draft of chapter 5. Their willingness to trust someone who was clearly not on the team is to be commended.

      In the area of public interest law, my debts are even wider. Clint Bolick, Chip Mellor, Terry Pell, Michael Greve, Jim Moody, David Kennedy, and Michael McDonald, among others, shared their time, and, in most cases, were willing to talk to me multiple times and read draft chapters, in order to help me get the complicated stories of the organizations straight. I was repeatedly struck by their candor, even to the point that, more than once, I penned e-mails reminding them that they were on the record. Special recognition must be given to Michael Greve, who replied to dozens of e-mails, and read drafts of the chapters on public interest law and the Federalist Society. In addition, in one especially important case, his encouragement to look beyond the public record helped me to avoid a particularly spectacular case of historical oversight.

      My chapters on law and economics would have been much poorer without the help of numerous scholars in the field. Robert Cooter, Christine Jolls, Robert Ellickson, Steven Shavell, Mitch Polinsky, Roberta Romano, Jerry Mashaw, Todd Zywicki, Michael Graetz, and others read chapters 4 and 6, providing terribly useful suggestions as well as, in some cases, their firsthand recollections. My greatest debt is to Henry Manne, who dug out, from numerous sources, much of the documentary material that chapters 4 and 6 are based upon. Henry also interrupted his otherwise idyllic life in Naples, Florida, for a number of very long interviews, and was willing to respond to dozens of e-mail requests for information. Henry truly went above and beyond the call of duty.

      At the Olin Foundation, Jim Piereson and Cary Hemphill were much more cooperative than they had any obligation to be. They provided me uncensored access—at a time when they were busy putting the foundation out of business—to the grant officer reports, grant proposals, and the minutes of the Olin Foundation, a gold mine on the history of the Foundation and the conservative movement overall. The account of the movement’s history in these pages would be much the poorer without their willingness to trust a nosy political scientist.

      Much of chapter 2 would have been impossible were it not for the Ford Foundation’s remarkably open archives, and the help of two wonderful archivists, Idelle Nissila and Jonathan Green. Special thanks go to Thomas Hilbink, who generously gave me access to his remarkable interview with Sanford Jaffe. The story in chapter 2 would not have been the same without it. I was also blessed with Sandy’s firsthand recollections during a visit to New Haven.

      I am especially indebted to the many scholars who read parts or all of the manuscript. Mike McCann, Robert Gordon, Jacob Hacker, Jack Balkin, Peter Skerry, Reva Siegel, Mark Blyth, Adam Sheingate, Stuart Chinn, Robert Mickey, Chuck Epp, Keith Whittington, Art Ward, Sandy Levinson, Stephen Skowronek, Shep Melnick, Bart Sparrow, David Fontana, Dan Ernst, Ilya Somin, Jack Goldstone, David Bernstein, Mark Tushnet, Brian Glenn, and Ken Kersch all provided incisive comments on the manuscript at various stages. Martha Derthick and Larry Mead are owed special notice. Throughout my career they have read everything I sent them, providing a combination of sharp commentary and credible support. Oliver Houck of Tulane University Law School saved me when I had all but given up on ever finding a copy of the Horowitz Report. Special thanks are due to Paul Pierson, who read a great deal of this book, but even more valuably reminded me constantly that it had to be finished.

      One final, largely silent, debt must be acknowledged. This book began as a comparative study of Social Security privatization. Although I eventually switched cases, my original question remained the same: what explained conservative strategies for undermining the modern liberal activist state? Much of my emphasis on organizational entrepreneurship and long-term strategy came out of a series of interviews with the Heritage Foundation’s Stuart Butler. I doubt this book would have been possible were it not for Stuart, who taught me so much.

      A deep debt of gratitude is owed to the research assistants who did work on the book. At Brandeis, Sam Dewey, Dan Kenney, Melissa Bass, and Sarah Staszak did excellent work for me. I am especially indebted to Melissa, now a professor at the University of Puget Sound, who helped get my writing in shape on criminally short notice. At Yale, my research needs increased considerably, and I was very lucky to have the assistance of the university’s remarkable students. Grace Leslie did heroic work on chapter 2, Judy Coleman gets credit for much of the book’s readability, Jonathan Dach did a magnificent job with the final copyediting, Sophie Lee scrutinized all the historical chapters and saved me from innumerable errors, and Sarah Egan introduced me to a great deal of work on social movements. The excruciating final revisions of the book were supervised by Judith Miller. It would be impossible to say enough about Judith’s intelligence, organization, and sharp editorial skills, but it must suffice to record for posterity that (despite her distaste for sporting metaphors) she dragged me across the finish line.

      Finally, Chuck Myers at Princeton University Press was an exceptional editor. In an age in which so many presses simply produce books rather than edit them, Chuck actually read, with great care, the entire manuscript and provided simple, elegant solutions for problems that otherwise would have made this a much less readable and coherent book. I would also like to state my appreciation for the generous and helpful comments of the three reviewers that PUP solicited for the book.

      What is good in this volume is due to the candor of those willing to share their memories, their files, and their wisdom. The failures are mine alone.

      THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT

      Introduction

      REFLECTING ON RICHARD NIXON’S sweeping victory over George McGovern in the 1972 presidential election, the young White House aide Patrick Buchanan told the president that, even though liberalism was still dominant in institutions such as the media, the Supreme Court is another story. The president has all but recaptured the institution from the Left; his four appointments have halted much of its social experimentation; and the next four years should see this second branch of government become an ally and defender of the values and principles in which the President and his constituency believe.¹ Buchanan’s hopes, and those of the conservative movement, would soon be proven sorely misplaced, as the Burger Court revealed itself to be the counter-revolution that wasn’t.²

      Flash forward to 2005. President Bush has nominated one of his closest advisers, Harriet Miers, to replace Sandra Day O’Connor on the Supreme Court. The reaction from the conservative legal establishment is immediate, harsh, and pointed. William Kristol, editor of the Weekly Standard, groaned that the nomination left him disappointed, depressed and demoralized.³ Todd Zywicki, professor of law at George Mason University Law School, summed up the mood of many in the conservative legal movement when he opined in the Legal Times that

      inspired by thinkers such as Scalia, Thomas, Robert Bork, and Richard Posner, and nurtured by groups such as the Federalist Society and the Institute for Justice, the conservative legal movement in America has grown in confidence and competence, building a deep farm team of superbly qualified and talented circuit court judges primed for this moment. The prevailing liberalism of the contemporary legal culture was on the ropes and primed for a knockout—only to have the president let it get off the canvas and survive this round.⁴

      Within weeks of Kristol’s and Zywicki’s laments, Miers’s nomination was withdrawn and replaced with that of Samuel Alito, whose connections to the conservative legal movement were so strong that they became a central topic in his confirmation hearings.

      The contrast between these two vignettes is telling. The inability of Nixon’s four appointees to transform the Supreme Court taught conservatives that electoral success was not enough, in and of itself, to produce legal change: conservatives’ failure in the Court reflected a deep imbalance between their forces at the elite level and those of their liberal counterparts. A generation later, the conservative legal elite—a group that did not, in any meaningful sense, exist in the early 1970s—led the charge against the president’s nominee and pushed the president to appoint one of their own. This book will explain how the conservative legal movement, outsmarted and undermanned in the 1970s, became the sophisticated and deeply organized network of today.

      By the time of Buchanan’s memo, conservatives were well on their way to capturing the Republican Party and turning it into a powerful, movement-based vote-getting machine, capable of prevailing in mobilization-heavy contests like the battle over the Equal Rights Amendment.⁵ Grassroots liberalism, by contrast, was shrinking, while its forces at the elite level—in the professions, universities, the media, and Washington-based public interest organizations—were surging.⁶ These new liberal elites, and the Democratic Party of which they were an increasingly central part, were of little use at election time. Yet conservatives like Buchanan would find themselves repeatedly frustrated by the liberals’ success at limiting the impact of conservative electoral power on the law.

      Although conventional wisdom holds that the Republican coalition was held together by anticommunism and opposition to taxes, just as important were the specter of activist judges and the liberal organizational network that supported them. Businesses hated the courts for legitimizing and accelerating the expansion of the federal regulatory state. Western farmers, ranchers, and extractive industries detested them for limiting their use of federal lands. Southerners continued to resent their part in dismantling segregation. Northern ethnic refugees from the Democratic Party seethed at the forced busing mandated by judges like Massachusetts’s Arthur Garrity. Religious conservatives were enraged by the Supreme Court’s constitutional sanctioning of abortion and its restrictions on school prayer. While their particular grievances differed, the conservative coalition was drawn together by a shared opposition to liberal judges, professors, and public interest lawyers and by a unified call for strict constructionism and judicial restraint.

      What conservatives in the early 1970s only dimly recognized was that reversing liberal accomplishments in the law was more strategically problematic than other conservative goals, such as reducing taxes and stiffening the American response to the Soviet Union. While relatively little elite mobilization was necessary to translate electoral victories into policy outcomes in these areas, in the law conservatives faced liberal opponents with a much more impressive set of resources: elite law schools, a large chunk of the organized bar, a vast network of public interest lawyers, and the still-powerful liberal understanding of rights. If they were to have any chance of influencing the development of the law, conservatives would have to compete directly with liberals at the level of organizational, and not simply electoral, mobilization.

      Spurred by their overlapping grievances, informed by an increasingly sophisticated knowledge of how to produce legal change, and coordinated by a strategically shrewd group of patrons, conservatives began investing in a broad range of activities designed to reverse their elite-level organizational weaknesses. While similar kinds of organizational development were happening in other domains where conservatives faced liberal entrenchment, in no other area was the process of strategic investment as prolonged, ambitious, complicated, and successful as in the law.⁷This book is an effort to explain the legal regime that conservatives faced, how they responded to it, and what accounts for the timing and relative success of their response.

      My explanation for the character of conservative countermobilization in the law combines multiple traditions in the social sciences. From historical institutionalism, I draw a focus on how the choices of social and political movements are decisively influenced by the nature of the regime they seek to dislodge. I borrow insights from organizational theory to explain the internal challenges that insurgents face and how these can decisively shape their ability to devise optimal competitive responses to entrenchment. Finally, from the sociology of knowledge and the professions and the political science study of the policy process, I draw lessons on how the status quo is protected by constructions of expertise, conventional wisdom, and prestige.

      My choice of these tools does not mean that I ignore the importance of electoral power or the intrinsic merits of ideas. Against the trend in political science studies of law, however, I argue in chapter 1 that changes in the form of political competition over the past half-century, especially the increasing importance of ideas and professional power, have led to a decline in the power of elections to cause comprehensive change, especially in highly entrenched political domains. As a consequence of this shift, the rhythm of large-scale political transformations in highly insulated policy and institutional domains, such as the law, is increasingly determined by nonelectoral mobilization. Change in these domains is generated by the ability of insurgents to develop strategies appropriate to specific forms of entrenchment, and to generate organizations capable of effectively implementing those strategies. The problem solving character of countermobilization, therefore, requires combining a structural focus on inherited constraints with close attention to the problem-solving efforts of political agents.

      I take seriously the argument that conservatives have found greater success in the law because their ideas—such as the negative side-effects of state planning and regulation—were shown over time to be superior to those of their liberal counterparts. My reconstruction of the history of the conservative legal movement shows, however, that ideas do not develop in a vacuum. Ideas need networks through which they can be shared and nurtured, organizations to connect them to problems and to diffuse them to political actors, and patrons to provide resources for these supporting conditions. Of even greater significance, the market for ideas is one in which incumbents have substantial resources with which to frustrate the challenges of competitors, regardless of how compelling their ideas are. In short, while there is a market for ideas, it is one that is institutionally sticky and requires entrepreneurial activity to give it life. For this reason, intellectual history is necessary but not sufficient.

      Given my focus on the structural constraints facing countermobilizers, it is essential to place the mobilization of legal conservatives in the context of the regime they opposed. Chapter 2 sets the stage for the examination of conservative mobilization that is to come by tracing out the development of the liberal legal regime, identifying the sources of its strength and durability, and thus the strategic challenges that it presented to conservative countermobilizers. This framing also reveals that legal liberals faced some of the same challenges that their conservative successors confronted a generation later.

      Chapters 3 through 7 shift the analysis to the primary subject of the book, the conservative legal movement.⁸ Chapters 3 and 4 examine the earliest organizational response to the rise of legal liberalism. The first generation of conservative public interest law firms, driven primarily by locally rooted, business-supported firms, was largely unsuccessful, and led the conservative movement to reconsider its approach to legal change. By contrast, the intellectual school known as law and economics, both at the University of Chicago and in the programs of Henry Manne’s Law and Economics Center, was remarkably successful. The differing outcomes of these two efforts at organizational countermobilization demonstrate that the movement’s success was not simply determined by the availability of financial resources, the perception of threat, or the opportunities provided by electoral victories, but was critically shaped by the decision-making of organizational entrepreneurs.

      Chapters 5 through 7 take the story into the 1980s and 1990s. Chapter 5 examines the Federalist Society, showing how a group of network entrepreneurs built a formidable organization to establish a conservative presence in the nation’s law schools and created the social capital upon which the movement’s intellectual and political entrepreneurs would draw. In chapter 6, I pick up the story begun in chapter 4, focusing on the Olin Foundation’s efforts to institutionalize law and economics in America’s elite law schools and Henry Manne’s ambitious project to create an entire law school around the field. In chapter 7, we return to the subject of conservative public interest law, with a comparison of the Center for Individual Rights and the Institute for Justice, the quintessential second generation conservative public interest law firms. I show how they responded to the organizational design and strategy failures of the first generation, and how they drew upon the conservative support structure’s new intellectual and network resources to challenge legal liberalism in the courts.

      The core of this book, chapters 3 through 7, is based almost exclusively on interviews and internal organizational papers. Unfortunately, very little of the documentary history of the conservative legal movement has been archived. Almost every document referred to in this book, therefore, was given to me directly by the organizations involved. To acquire these documents, I agreed that, while I would be free to quote from them in any way I thought appropriate, they would be for my exclusive use. I offered this arrangement to my sources because I believed that it was the only way that this material would ever get into the public domain. Because other scholars will not be able to check my arguments against the original documents or interviews, I have erred on the side of longer quotations, and have not strictly limited my presentation of the cases to material with direct bearing on my theoretical arguments. This should allow other scholars to draw different conclusions, and provide a foundation for future scholarship on these subjects.

      I have found repeatedly through the writing of this book that the combination of interviews and contemporaneous documents was essential. While interviews are quite important, memory, on its own, is fallible, as most people tend to remember events in such a way that they form a coherent narrative. Memory, however, is often tidier than history. Contemporaneous documents, especially grant proposals—a wonderful and woefully underused source—help to fill in the holes of memory. What is more, they help to correct for the very real problem of survivor bias in the study of organizations, the tendency to focus on projects that worked (and thus were continued) and to ignore the equally interesting ideas that were tried and failed, or were considered and shelved.

      Even these sources do not completely convince me that the story told in these pages is definitive. The history of the conservative legal movement is still in its infancy, and, in almost all my cases, I was working more or less from scratch. As a result, this book is only as good as the papers that organizations kept and the candor of my informants. Events on which there was a large documentary base, for example, may loom larger than those that were equally important, but less thoroughly documented and preserved. My hope is that this will be the first of many books on the subject. I look forward to having my errors corrected by those who come after me.

      1

      Political Competition, Legal Change, and the New American State

      Whether a given state changes or fails to change,

      the form and timing of the change, and the

      governing potential in the change—all of these

      turn on a struggle for political power and

      institutional position, a struggle defined and

      mediated by the organization of the

      preestablished state.

      —Steven Skowronek, Building a New American State

      A Polity Transformed: The Rise of Nonelectoral Party Mobilization

      Political competition, as the epigraph of this chapter asserts, is mediated by the structure of the state. Challengers to a dominant regime do not operate in an empty playing field, but are forced to challenge inherited norms and institutions, or to adapt their insurgency to the structure of the regime they seek to dislodge. To understand why the conservative legal movement took the form it did, therefore, we need to begin with an account of the regime created by its opponents and the form of political competition that it produced.

      In the process of creating a vast new set of policy commitments—from social insurance and economic regulation to civil rights and environmental protection—liberal reformers also transformed the American political system. This new policy process put a premium on knowledge, expertise, and professional credentials, and developed in tandem with the legalization of society, marked by an increasingly dense maze of laws, regulatory agencies, courts, and litigants.¹ In some cases, the national government actively encouraged professionalization in order to generate linkages between levels of government and between the state and society and encourage policy changes that could not be produced directly.² As universities expanded, graduate programs increased to sate the demand for professors, credentialed teachers, social workers, public administration professionals, and policy analysts. The higher education sector grew in tandem with the expansion of this new political system, generally accepting its assumptions and supplying cadres of trained individuals sympathetic to its preservation and expansion.

      The fraying of separation of powers, federalism, and limits on governmental authority produced a policymaking system with multiple, overlapping programs, paid for and administered by different levels of government and nongovernmental organizations. Responsibility for policy outcomes was hard to affix in this complex system, making mass mobilization difficult and diverting participation into particularistic, piecemeal forms.³ The diffuse character of government meant that coordination and control of the policymaking system were produced by networks that cut across agencies, levels of government, and the state-society divide, rather than by political parties.⁴ Even as the Democratic Party’s electoral power waned in the late 1960s, its strength in these policy networks waxed. These networks, built largely through subsidy by third-party funders such as charitable foundations,⁵ facilitated policy change by encouraging courts, congressional subcommittees, and bureaucrats to collaborate in a process of low-visibility, incremental policy expansion.⁶ These changes in the structure of the policymaking process made elections decreasingly important as sources of large-scale policy change.⁷

      The flip side of this institutional transformation was a political system increasingly sensitive to expert opinion, issue framing, and professional networks.⁸ Many of liberalism’s achievements derived from the skillful use of power by a transformed federal bureaucracy, staffed by actors sympathetic to (or previously involved in) social movements. This system’s advent gave liberal Democrats the ability to push their policy agenda even when the presidency was in the hands of Republicans.⁹ Shifts in attention, driven by interest groups, the media, intellectual entrepreneurs, and litigators, became important drivers of cycles of policy change, independent of the electoral fortunes of the political parties.¹⁰

      By the 1970s, political scientists became convinced that these changes had permanently displaced parties as significant political actors. We now know that this claim was wrong—or at least incomplete. Rather than destroying parties, this transformed state produced a new form of party competition. Social movements and interest groups that had been organized in opposition to political parties eventually became institutionalized, cemented to the state, and coordinated in a network increasingly connected to the Democratic Party.¹¹ This activist network, primarily concerned with policy rather than electoral outcomes, became the dominant faction in the Democratic Party. The rise of this faction led to George McGovern’s nomination in 1972, as the head of a strange new coalition unlike any the Democrats had ever seen. In short, the new Democratic Party that emerged by the mid-1970s was new not just in the sense that new groups were incorporated, but also in how those groups were organized, coordinated, and centered.¹²

      The Democrats created this new party system as it incorporated interest groups and social movements that had once defined themselves in opposition to the party. A loosely coordinated network that bridged state and society—what some observers called a new class—came into being as these activists moved into the professions, foundations, educational organizations, and the media.¹³ At the same time, older American elites who had once thought of themselves as part of a cross-party establishment linked themselves to these new actors, giving them access to institutions with substantial resources, connections, and prestige.¹⁴ While this network of activists, organizations, and elites cut across the two political parties through the 1960s, it became firmly incorporated into the Democratic Party in the early 1970s as the Republicans began to identify themselves with resistance to liberalism.

      In contrast to European political systems, which feature a broad array of these kinds of activities and movements formally linked to the parties, the nature of American law (especially the tax code) and the strategic advantages that could be had from avoiding an open partisan coloration forced the relationship between the Democrats and their nonelectoral wing to remain informal. Despite this formal delicacy, an activity is partisan in a behavioral sense because of what it does, not what it is called. Political activity can be said to be partisan to the degree that participants operate as a team (their behavior is coordinated) and integrate their activities with a corresponding team of ambitious officeholders (their behavior is coupled). Understood this way, party is a continuous, rather than a bimodal, variable: organizations are more partisan to the degree that their behavior is coordinated with the party’s office-holding side. It is not necessary that every individual in a particular institution, such as a profession or a university, actively conceive of his or her activity as partisan for it to function as a support for a partisan coalition. What matters is whether there is general sympathy with the policy goals of a party, and whether the institution in question helps to coordinate action consistent with those goals and provide services to support them. Understood this way, the broad liberal network that worked closely with the Democrats to develop ideas, coordinate strategies, recruit personnel, and implement policies was now a part of the party system, in effect if not in name.

      For a time, Republicans responded to this newly configured Democratic Party only in the electoral dimension, avoiding direct competition at the level of elite organizational mobilization. As a result, they were frustrated in their effort to create change except where a policy venue had a strong electoral lever (as in tax and defense policy), or where their objectives could be achieved by preventing action from occurring.¹⁵ In the new American political system of the 1970s and 1980s, access to specialized knowledge, networks across government and society to diffuse information and strategies, and allies in institutions that trained and recruited future policymakers were increasingly important, and conservative Republicans were at a severe disadvantage in all of these areas. This elite organizational imbalance explains the otherwise puzzling fact that many of the issues that the Republican Party now defines itself in opposition to were passed with almost no organized conservative response or critique.¹⁶ It was only when Republicans developed a parallel set of elite organizations that they could avoid being overwhelmed by the Democrats’ advantages in information, organization, networks, and professional power.

      Political parties have always reached beyond the small core of office-seekers who carry their label in elections, but in the transformed party system that came into being in the 1970s, these nonelectoral dimensions of party activity have become increasingly important.¹⁷ As the parties became more polarized on ideological lines, the distinction between partisan and ideological activity became blurred.¹⁸ Increasingly enmeshed with political parties, these activists and their institutions have become the subject of fierce ideological competition, testament to which can be found in contemporary arguments over the composition of universities, the media, and even the medical profession.¹⁹

      Parties have gone where the action is in American politics, seeking to control government not just through electoral warrants from the voters but also by coordinating the behavior of actors across society and among the different branches and levels of government. Explaining political competition in the era of electoral displacement does not require that we abandon assumptions of rational, optimizing, competitive behavior. Rather, it demands a recognition of the evolution in the locus of policy change and the effect that this has had on the collective pursuit of American political power. Much of the action in American politics currently resides in the realm of elite organizational mobilization, where the great battles of modern politics are being fought and where the alignment of the political system is increasingly determined. Far from disappearing, parties (rightly understood) are now competing over a much wider terrain than in the past.

      The New Political Competition: The Case of the Law

      Complex, technical, and professionalized, the politics of American law and courts has proven acutely sensitive to the increasing significance of ideas, information, networks, issue framing, and agenda control in American politics. Despite these changes, political scientists have, if anything, become even more likely to identify shifts in electoral power and public opinion as the motor of large-scale legal change. Electoral stimuli obviously influence legal change through the mechanism of judicial appointment. Purely electoral accounts of legal change are too quick to see continuity in the legal politics of the period up through the New Deal and that of the last fifty years. If the argument up to this point is correct, then explaining conservative countermobilization in the law demands a more capacious tool-belt than electoral theories can provide.

      Theories that look to electoral stimuli as the key to understanding legal change are hardly new. Fifty years ago, Robert Dahl gave this argument its classical formulation: Except for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance. As an element in the political leadership of the dominant alliance, the Court of course supports the major policies of the alliance.²⁰ Subsequent authors have followed Dahl’s lead, claiming that the judiciary is too weak to avoid supporting the dominant alliance,²¹ actively advances the goals of the dominant party,²² or changes its behavior only in constitutional moments produced by realigning elections.²³ Other authors less interested in general theories of constitutional change have argued that the Supreme Court, independent of the composition of its members, appears sensitive to shifts in popular preferences, although this effect is typically somewhat small, and—significantly for our purposes—possibly in decline.²⁴

      Students of the courts have devoted increasing attention to the conflict between the courts and the other branches of government that Dahl thought limited to short-lived transitional periods. Because of the long (and growing) length of justices’ terms, these periods may be more sustained than scholars in the Dahlian tradition recognized, and therefore of substantial constitutional significance.²⁵ The nonsimultaneous response of political institutions to external stimuli sets the stage for conflict between the judiciary and the other branches of government. As J. Mitchell Pickerill and Cornell Clayton argue, the Court’s attempts to disrupt the agenda of the dominant political alliance will provoke an institutional response—such as a constitutional amendment, legislation to strip the Court of jurisdiction, or Court packing—to realign the Court’s jurisprudence with the priorities of the governing regime.²⁶ Despite their useful addition of durable interbranch conflict, these arguments are not fundamentally different from others in the Dahlian tradition: it simply takes longer for the legal market to clear (that is, to align with the dominant political alliance) than earlier supporters of the political court theory believed. Entrenchment happens in this theory, but both its source and its remedy are electoral. Courts eventually change when, and only when, the dominant political alliance has sufficient time and power to reshape the composition of the court.

      Dahl’s successors are clearly right to understand legal change as tightly coupled to larger processes of political competition. However, if the argument of the previous section is correct, neither partisan entrenchment nor disentrenchment can be understood predominantly by reference to electoral stimuli, as partisan conflict ranges well beyond the electorally rooted institutions that analysts of a political court usually assume drive long-term judicial change. What is more, theorists in this tradition give relatively short shrift to the declining prevalence or efficacy of institutional devices to align the courts with the dominant political alliance. Finally, modern Dahlians ignore the thickening of the American political system produced by the growth of the modern state, which has been shown in other contexts to have weakened the mechanisms of disruptive, electorally inspired change.²⁷ In short, partisan entrenchment occurs not only in courts, but also in the social institutions that feed the courts with ideas, personnel, and cases. In particular, professional associations, the politically motivated parts of the bar, and law schools are all sites for attempting to temporally extend a partisan coalition. Jack Balkin and Sanford Levinson recognize this when they note one important feature of intellectual paradigm shifts and constitutional revolutions: the takeover of those institutions charged with teaching the young by newcomers imbued with the new learning and inclined to dismiss, often quite rudely, the purported verities of their predecessors.²⁸ But Balkin and Levinson say nothing about how, if at all, entrenchment in law schools occurs, and give us no reason to expect that the process by which law students (and ultimately law faculties) change should resemble that of the courts, for which the political mechanism is at least reasonably clear.

      The work of Charles Epp provides a useful frame for understanding the nonelectoral sources of judicial entrenchment. Epp argues that for major legal changes to occur, a shift in the judiciary’s character is insufficient.

      Many discussions of the relationship between the Supreme Court and litigants assume that the resources necessary to support litigation are easily generated and that, as a result, litigants of all kinds have always stood ready to bring forward any kind of case that the Court might indicate a willingness to hear or decide. But that presumes a pluralism of litigating interests and an evenness of the litigation playing field that is wholly unjustified. Not every issue is now, nor has been in the past, the subject of extensive litigation in lower courts, due in part to limitations in the availability of resources for legal mobilization.²⁹

      Hence, in explaining why legal change occurs, we must focus on the supply side (litigants), rather than simply the demand side (courts) that the Dahlians focus on. Epp’s supply side, which he refers to as the support structure for legal change, includes not just those bringing cases, but also those who create legal ideas and strategies, such as law professors, litigants, and their patrons.³⁰ Where the composition of the judiciary is reshuffled without a corresponding shift in the support structure, legal change may fail to occur or, at the least, be substantially limited and poorly coordinated or implemented.

      What is it about the law that makes this support structure so important? First and foremost, courts have substantially less agenda control than other political institutions. Because of this, social actors who are mobilized and skilled at organizing litigation campaigns are likely to prevail over their unmobilized and unskilled counterparts.³¹ Whether the Court hears a case at all depends upon the ability of litigants to produce enough cases to create a conflict between circuits, and whether the cases produce the outcomes they want depends upon those litigants’ ability to effectively shape the fact pattern presented to the courts.³² This feature of strategic litigation substantially advantages those who control the supply of cases, and disadvantages those who are forced to respond.

      Furthermore, for legal ideas to be taken seriously by the courts they cannot be seen as wholly novel or outside the realm of legitimate professional opinion. This is work that first must be done outside the courts. Balkin, for example, has convincingly argued that

      the question of what is off the wall and what is on the wall in law is tied to a series of social conventions that include which persons in the legal profession are willing to stand up for a particular legal argument. In law, if not in other disciplines of human thought, authority, and particularly institutional authority, counts for a lot. The more powerful and influential the people who are willing to make a legal argument, the more quickly it moves from the positively loony to the positively thinkable, and ultimately to something entirely consistent with good legal craft.³³

      As a consequence, groups with disproportionate control of the institutions that produce and legitimate legal ideas, groups who have legal authority, will enjoy a significant advantage in persuading judges and other significant legal actors that their demands are reasonable and appropriate. If, as Owen Fiss has argued, the disciplining norms within a legal community constrain the range of legitimate interpretation, then the ideological bias of that community should strongly influence the kinds of arguments that are successful in the courts.³⁴ Control of the institutions that embody this interpretive community, in particular law schools and the organized bar, is only weakly coupled with the cycles of electoral politics. These institutions not only produce legal ideas, but are also the dominant force in training successive generations of lawyers, influencing their notions of the proper function of law in society, of which legal claims are off the wall, and of how a career in law might be pursued. In short, as gatekeepers to the profession, control of legal education shapes, over time and not without substantial room for error, patterns of recruitment to the profession, and ultimately determines who will be soliciting cases and arguing before the courts.

      This support structure is also important because the courts, and the Supreme Court in particular, typically look for cues from other elite institutions. For instance, students of the Supreme Court have found that pro-life advocates in the 1970s were significantly disadvantaged because of the overwhelming support pro-choice activists had from professional organizations,³⁵ while justices were, in the area of civil rights, especially attentive to the

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