Born of Ideas, Conservative Legal Community Rises to Influence

WASHINGTON, MARCH 25, 2008 -- The emergence and growth of the conservative legal community reflects the power of ideas to influence politics and policy, said several legal scholars at AEI on March 24. Convened to discuss Steven M. Teles's new book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, 2008), Teles--an associate professor at the University of Maryland--and others debated the nature of the term "movement," how political change occurs, and what lessons might be held for parties interested in following the conservatives' path.

By the 1970s, conservatives had noticed several trends moving against them, including in legal decisions. Early attempts to combat these trends, according to Teles, included a regional network of public interest law firms to combat the array of liberal public interest firms funded largely by the Ford Foundation. These firms were too close to the business interests that funded them, Teles said, and they proved ineffective at countering the liberal legal tide. Indeed, to the extent that the conservative legal community grew, it was by fits and starts and not due to central planning. By the 1990s, a movement that included effective public interest law firms, educational and human development organizations (like the Federalist Society), and think tanks had been organized around principles of constitutionalism, and that movement eventually advanced conservative legal ideas into the mainstream and conservative jurists into the nation's law schools and federal bench. According to moderator William Galston of the Brookings Institution, The Rise of the Conservative Legal Movement is "a study of how ideas attain and wield power."

AEI's Michael S. Greve countered Teles's description of the conservative legal community as a "movement," arguing that it is not a "vanguard" with "troops" to advance an agenda. He quipped that when Justice Anthony Kennedy issues an opinion, members of the Federalist Society do not make placards and march on the Supreme Court crying "What do we want? Original meaning! When do we want it? Now!" Greve argued that the conservative legal community is rather an "issue network" of individuals and groups with a "strategic commitment to constitutionalism and the rule of law." Teles did not dispute Greve's understanding of the movement's philosophical orientation, but one of the theories underlying his argument is that the movement is characterized by "elite mobilization"--as opposed to mass mobilization--in policymaking and politics. Any legal community, as a guild of professionals, is by definition an elite group. Changes within the elite do not necessarily mirror those in the broader community. "The rhythm of legal change," he said, "is likely to be very different than the rhythm of electoral change."

Jack Balkin of Yale Law School also addressed the issue of elites. There is inherent in political changes a "struggle over the reasonable," he said--a struggle to define what ideas are worthy or consideration or not. Because of the arduous work involved in changing the terms of debate, "it takes twenty-five years to 'grow' a Supreme Court justice."

Teles offered a number of "lessons for liberals"--but objective and useful for any observer--from the successes of the conservative legal community:

• "Learning, not mimicking." When conservatives merely mimicked liberals, they were ineffective.
• "Networks, not hierarchies." Contrary to some accounts, the movement is not top-down.
• "Spread-betting, not planning." When conservatives tried very organized activities, they failed. When the movement allowed a wide range of entrepreneurial activities, they got "environmental feedback" on what works.
• "Long time horizons." As Balkin mentioned, elite mobilization is not speedy.
• "People, not projects." Conservative foundations were most successful when they donated to smart individuals.
• "Ideas, not marketing." Conservatives made "investments in improving the content of [their] ideas."
• "Looking for evangelicals, not fundamentalists." The conservative legal community grew by reaching out to those it sought to persuade, not to the already-converted.

--EVAN SPARKS

This book forum was cosponsored by the AEI Legal Center for the Public Interest and the Brookings Institution's "Governing Ideas" series. For video, audio, and event information, visit www.aei.org/event1681/. For more information about the AEI Legal Center, visit www.aeilegalcenter.org or contact Sara Wexler at sara.wexler@aei.org or 202.862.5820.

For media inquiries, contact Véronique Rodman at vrodman@aei.org or 202.862.4870.

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