July 23, 2018

HOW CONSERVATIVES WON THE LAW:

The main achievement of the conservative legal movement, Mr. Teles says, hasn’t been fundraising but education, study and debate. The Federalist Society’s premise is that “we’re going to be smarter than the liberals,” he adds. “We’re going to be more bookish. We’re going to be more intellectual.” Conservative law students would “go down to first principles” to show that liberal students “can’t even describe why they’re in favor of what they’re in favor of.” Many of the early Federalist Society members were former liberals; their goal was to “draw people in” as they had been drawn in, by demonstrating “how thoughtful and how intellectual that project is.”

Assisting presidents with judicial appointments is a tiny fraction of the group’s activities. “If you add up all of the hours of everyone who works in the Federalist Society, overwhelmingly, it’s running debates and speakers,” Mr. Teles says. While it has a robust fundraising operation, “most of the Federalist Society is basically done by pro bono contributions” from “people who are running chapters all over the country” for students, faculty and lawyers. The fundraising is merely “a multiplier force for all of the stuff people are doing that’s really voluntary activity.”

What motivates these millions of hours of intellectual legwork? Mr. Teles says it’s a conservative response to the “entrenchment of liberalism” in the legal ecosystem. Through the first half of the 20th century, groups like the American Bar Association were conservative in the sense that they were controlled by a risk-averse WASP elite. But amid the Cold War and the social unrest of the 1960s, the legal establishment—like the educational establishment—decided it needed to move leftward to retain its legitimacy. It began to throw its weight behind representation for the unlawyered, while backing liberal groups like the Environmental Defense Fund, the NAACP and the Mexican American Legal Defense and Education Foundation. At the same time, law schools were on a hiring spree, and young professors tended to lean left.

In the decades after World War II, “a new kind of legal establishment” was created, one that saw social justice as a core element of its mission. This was a double-edged sword. Even as “the establishment got liberalized,” Mr. Teles says, “liberalism got establishmentized.” Avowed liberals wound up “running things that were not supposed to be at least openly ideological”—not only the bar, but universities, the prestige press and other elite institutions.

“Liberals got power because they got control of professional venues.” As a result, they fell back on appeals to authority, or what Mr. Teles calls “hiding the ball.” Rather than arguing against conservative ideas on the merits, they claimed their opponents were “violating expert knowledge.” He cites the popular assertion by corporations and universities—and the Supreme Court, in decisions involving racial preferences in admissions—that diversity is merely a matter of “good professional practice” rather than social justice.

The Federalist Society does many excellent things, and is currently enjoying a deserved victory lap. But if other, less bookish, Republicans hadn’t won elections, there would be no victory lap.

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