Jeffrey Rosen: Legal Conservatism Goes to War With Itself
Jeffrey Rosen is the legal editor of The New Republic.
...In the 1950s and 1960s, legal conservatism was more of an attitude than an ideology. From the congressmen who signed the Southern Manifesto in 1956—which denounced Brown v. Board of Education—to the dissents of John Marshall Harlan and Felix Frankfurter that criticized the Warren Court’s activism in cases involving reapportionment and criminal procedure, legal conservatives during the Warren era defined themselves more by what they were against than by what they were for.
That began to change in 1971, when Lewis Powell, a moderate country-club Republican and future Supreme Court justice, wrote an influential memo for the U.S. Chamber of Commerce. Powell was concerned by a rising tide of environmental and consumer litigation, and he proposed the creation of an activist conservative legal movement to counter the trend. One person who heeded the call was a wealthy Ronald Reagan supporter named John Simon Fluor, who provided the seed money to start a conservative property-rights litigation group, the Pacific Legal Foundation, in 1973. Four years later, the beer baron Joseph Coors helped to establish the Mountain States Legal Foundation, a group focused mainly on federal land-use regulations. Business interests weren’t the only ones to answer Powell’s plea. They were joined by libertarians such as Clint Bolick and Chip Mellor, who would go on to found the Institute for Justice, and by Ed Meese, a zealous defender of executive power who, as chief of staff to then-California Governor Reagan, was outraged that his boss’s efforts to cut the welfare rolls had been challenged in the courts.
As the ranks of conservative litigation groups grew, tensions among different legal worldviews began to surface. Mellor, for instance, was fired from the Mountain States Legal Foundation for championing free-market values over the interests of business monopolies. But by the early ’80s, with Reagan in the White House, conservatives were more interested in transforming the legal culture and the courts than in internecine squabbles. The founding proposal of the Federalist Society, created in 1982, suggests just how eager conservatives were to paper over their differences. As Steven M. Teles relates in The Rise of the Conservative Legal Movement, the proposal stressed the importance of avoiding factionalism among “members who span a broad ideological spectrum which includes traditionalists, fusionist conservatives, libertarians, objectivists, classical liberals, and Straussians.” It even recommended that student chapters “not use the adjective ‘conservative’” because “there is no need to become involved in disputes among conservatives, libertarians and other factions about what they call themselves.”
Initially, the Federalist Society was successful at persuading conservatives to converge around a common rhetoric of “original understanding” and “judicial restraint” (although those terms meant different things to different factions). But the spirit of unity that animated the group during its founding didn’t last. Before long, the Federalist Society had succeeded in getting conservative legal intellectuals appointed to federal appellate courts, and conservatives found themselves not a beleaguered minority, but a newly empowered majority. As soon as that happened, divisions—old and new—began to surface....