Examining the So-Called Ascendency of the Conservative Legal Movement

by Jeremy Leaming

The dominance of a conservative legal orthodoxy might not be as solid as portrayed by several panelists at a recent Brookings Institution event about the “Conservative Legal Movement and the Future of Liberal Jurisprudence.”

Pamela S. Karlan, a distinguished law professor at Stanford Law School, explained why many perceive the conservative legal movement as dominating the narrative of the Constitution, while William E. Forbath, a distinguished law professor and professor of history at the University of Texas, focused on sharpening a liberal response to the conservatives’ narrative of the Constitution primarily meant to protect individual interests, such as private property. Forbath also examined the Constitution’s promise of economic security and equality.

Karlan (pictured), an ACS Board member, took exception with the overall tilt of the Brookings event that conservative legal activists have outmaneuvered liberals in advancing legal theories. Karlan, however, also leveled criticism of liberals who are cowed into silence or into dubbing themselves progressives.

But first Karlan noted the circumstances, with which conservatives have seized upon to advance their legal precepts.

“Today it is tempting to tell a story about the rise of the conservative legal movement as the inevitable consequence of a combination of strong ideas pressed by charismatic public figures, backed by tremendous resources,” Karlan said. “To be sure, conservatives have very skillfully played the hand that they held. But contingency has played a major role too.

“If you go to the Brookings’ website to look for its description of the conference today, you’ll see the description that says ‘the conservative legal movement has shown remarkable success at defining the terms of the debate over jurisprudence, while various visions of liberal theories of law that confront conservative orthodoxy have struggled to gain currency in the political sphere. Conservative legal theorists have coalesced around a relatively compact and politically effective set of ideas while their liberal critics have offered a diverse series of responses.”

Continuing, Karlan said, “Now if some other public policy organization were to have held a conference in say 1968, it could have taken the same paragraph, swapped the words ‘conservative’ and ‘liberal’ and held a parallel discussion to the one were going to be holding today.”

Conservatives Karlan maintained, “Have been as lucky as they’ve been smart.” A few tweaks to history, she said, and the landscape would likely look really different.

“The first tweak – Jimmy Carter and George H.W. Bush. They were both one term presidents. Jimmy Carter got no chances to put a justice on the Supreme Court, Bush got two, and used one of them to nominate Clarence Thomas, in many ways the most radical conservative jurist to sit on the Supreme Court in our lifetime,” she said. “Turn that around, and consider what would have happened if Justice Thomas’s seat were held by one of the judges Jimmy Carter appointed to the court of appeals, say Patricia Wald, or Betty Fletcher, or to drive terror into the hearts of conservatives, Steve Reinhardt.”

And the second tweak, an Al Gore presidency. Had Gore been president Karlan surmised we might well “still have a chief justice, who was a former administration lawyer, a Hogan & Hartsen partner, and a D.C. Circuit alumnus – but it would be David Tatel, not John Roberts.”

Moreover, conservatives have been extremely adept, she continued, since the 1980s, at creating an impressive bench of judges. They have nominated young people to positions of great authority, setting them up for prime seats on the federal bench. (She added that essentially Republican judicial nominees are significantly younger, having lengthier careers and greater impact on the law.)

Liberals, Karlan continued, do indeed have strong ideas that are simply put, but have had a difficult time holding fast to those ideas, while conservatives have continued to fight against an opposing point of view, which has failed to be self-consciously ideological.

“The Left,” Karlan added, “to the extent there is one, has become ashamed of calling themselves liberals. I’m always amazed at the number of people who are afraid of the L-word …. And they’ve started calling themselves progressives, which is a problem for the following reason – the progressives believed in a kind of a technocratic merit and elitism as the way the government should be conducted, rather than retaining the kind of passion for the common people for justice for opportunity in life.

“So there has not been, really since the end of the Great Society, a positive articulation of the alternative to conservative legal thought -- an idea that government works and that government can make people’s lives better, that egalitarian institutions are better than high-bound traditions in life. The failure of liberals to articulate their point of view and their vision is a large part of what has allowed the conservative legal movement to seize on the opportunities that it’s had, and to entrench itself without a persuasive response.”

Karlan ended on an optimistic note, however, by suggesting that liberals were doing a better job of building and advancing their narrative on the reach of the Constitution and noting that conservatives’ so-called originalism was beginning to look more tired with each passing year.

She said, “You can see this from the fact that no one is backing, for example, the original originalism, what I used to call the ‘WWJMD Theory,’ you know ‘What would James Madison Do?’” People don’t do that anymore, and there was actually a laugh when Justice Alito asked that question in the violent video games case – you know, ‘What would James Madison think about violent video games?’ It doesn’t make much sense. And you also see this in the reaction to when Justice Scalia said in a recent interview that he didn’t think the 14th Amendment has anything to say about gender equality. That is not something I think the American people believe in.”

So there has been a retreat, a kind of softening down to a kind of faint-hearted originalism, a phrase practically all use, much like the way the words cellophane and aspirin are used, she said.

Forbath, the University of Texas School of Law professor, said he agreed with much of Karlan’s remarks, but highlighted where liberals’ narrative has gone astray.

“Progressives have forgotten how to think about the constitutional dimensions of economic life,” Forbath said.

They have strayed, he said, from talking about the Constitution’s promise of economic security, secure livelihoods and workplaces.

In today’s economic turmoil, Forbath suggested these discussions need to be highlighted, and to some extent they are. (As noted here frequently discussion of the nation’s growing economic inequality have caught the attention many, including those in the media, thanks, in part, to Occupy Wall Street protestors.)

Forbath (pictured) noted that FDR and supporters of the New Deal did indeed point to the Constitution as foundation for many of the policies aimed at making life fairer and more secure in America. In fact, Forbath said many of the New Dealers argued that the Constitution obliged them to enact those laws – in essence a second bill of rights to advance and protect decent livelihoods was born.

But in recent memory, liberals have lost control of this narrative, letting the libertarian-conservative narrative of a Constitution devoted to only protecting rugged individualism, godliness, personal responsibility and private property, dominate the landscape.

Here, Forbath suggested that liberals have exerted too much energy focusing on methods of constitutional interpretation.

Lots of time, he maintained, has been spent attacking originalism or proffering other constitutional interpretation methods. “But too often,” Forbath noted, “these discussions are ones of procedure” that avoid substance.

It’s not so much that conservative activists have a “killer interpretation” of the Constitution, he said, as they have a bold and frequently repeated narrative of an America that must be restored.

Liberals, he said, must return to advancing their narrative of a Constitution that is just as bold and accessible -- and says many Americans are on their side.

“I think as a matter of fact, Americans don’t believe the Constitution is silent about economic power,” Forbath said. “I think they expect their Constitution and lawmaking under it to shape the play of economic power in our society. Whatever their politics, they expect lawmakers and judges to attend to the Constitution’s promises of equality and liberty” in the same manner they address competition policy, education policy and job creation policy.

See here for a transcript of the entire discussion, which also included participation from Harvard Law School Professor Noah Feldman, George Washington University Law School Professor Jeffrey Rosen, University of Chicago Law School Professor David A. Strauss, and Slate’s Senior Editor Dahila Lithwick.