Conservative Legal Movement, Take Two

Last February, Mary noted the publication of Steven M. Teles’s Rise of the Conservative Legal Movement (Princeton University Press). Teles, a political scientist, argues that the conservative legal movement floundered for fifteen years after its birth in the early 1970s. Only after the founding of the Federalist Society (1982), the spread of law-and-economics throughout the legal curriculum, and the creation of such “second-generation” law firms as the Center for Individual Rights (1989) and the Institute for Justice (1991) did conservative lawyers become a powerful counter to the liberal legal network that dominated public policy in the 1960s and 1970s. Teles has written a fair-minded, thoroughly researched, and penetrating work of scholarship, rightly praised by lawyers and scholars across the political spectrum. I especially appreciate the long view he takes of his subject, his insistence on putting the rise of conservative law firms in the context of what Sidney Milkis has called “the displacement of popular politics” by bureaucratic and judicial activism since the New Deal. That said, I’ve also wondered what a historian, trained to think in terms of distinct historical periods, might make of the topic.

That’s why I was so pleased when I was asked to be Jefferson Decker’s mentor in the Fellows Program of the Miller Center of Public Affairs at the University of Virginia. Decker is completing a dissertation on the “first-generation” conservative law firms at Columbia University under the direction of Alan Brinkley. He is just as committed to scholarly objectivity as Teles but writes very much as a historian. From what I’ve seen of it, his project will provide a very instructive contrast to Teles’s book, one that treats the Pacific, Mountain States, and other first-generation firms less as negative examples for the second generation than as part of a particular moment in the history of conservatism, a time when the movement gathered strength and then captured the federal government. The relationship between Mountain States and a political movement, the Sagebrush Rebellion, and the experience of first-generation lawyers in the Reagan administration are likely to find larger places in Decker’s account than they do in Teles’s book.

The Miller Center has posted a webcast of a session of a conference held last month in which Decker presented some of his work and I commented. Our portion of the webcast is preceded by the presentation of another Miller Center Fellow, Christopher Lebron, a doctoral candidate at MIT, and a comment by the University of Virginia’s Lawrie Balfour. The legal historian Risa Goluboff moderates.