Steven Teles

Before getting into the substance of their comments on the book, I want to thank David Berstein, Ilya Somin, and Orin Kerr for their generous praise. Despite the fact that the book is about the law, and in large part about legal academia, the audience I had in my mind when I wrote it was my fellow political scientists. Scholars in my discipline rarely pay sufficient attention to the role of intellectuals, philanthropy and the professions as a cause of political change. In writing The Rise of the Conservative Legal Movement, I was primarily speaking to them. That two prominent academic lawyers like Bernstein, and Kerr found the book of interest is encouraging, especially given that they are likely to know my cases much better than my primary, disciplinary audience will. And the warm words of Ilya Somin, who is both a lawyer and a political scientist (Harvard-trained at that!), is especially gratifying.

Their complements aside, Somin and Bernstein had some particular issues with the book. In this post, I will deal with their most important criticism, which is with what is not between the pages, rather than with what is. Where Are The Social Conservatives?

Both Bernstein and Somin are concerned that the book promises more than it delivers, in the sense that the title suggests to the reader that he is picking up a book on the “Conservative Legal Movement” but which spends most of its time with libertarians, and relatively little with social and religious conservatives. This is a reasonable point, and worth responding to at some length.

First, it was a concern that I was well aware of in writing the book, and that I struggled with more than a little bit. In fact, footnote #8 of the introduction explains why the book was generally light on religious and social conservatives. First, there is already an interesting book in print on the subject, Steven Brown’s Trumping Religion: The New Christian Right, The Free Speech Clause, and the Courts (Alabama, 2004). I strongly recommend that anyone interested in the strategic choices made by religious conservative lawyers study the book carefully, as I did: in my judgment, it was the best book published on conservatives in the law before mine, and certainly the best study of the subject since Lee Epstein’s Conservatives in Court (Tennesee, 1985). One of the main reasons I did not go into the subject at any greater length than I did was that I did not feel I had much to offer that Brown had not already covered.

Second, and related to the first point, is that while I believed I was already reasonably far up the learning curve on the subjects I covered in the book (despite not being a lawyer), I do not have any particular training or background in Christian conservatism. My method, such as it is, in studying these matters is to try to understand the challenges faced by organizational and intellectual entrepreneurs from the inside, to get into their heads and make sense of what the choices they were presented with looked like at the time they were facing them. To write a book like mine that covered Christian conservatives would require that the author have an intuitive sense of that part of the movement, and in all honesty, that is not part of my intellectual capital. I sincerely hope that someone who has that background will follow up on Brown’s book.

Third, I had some serious doubts that I could gain access to the sort of materials that form the backbone of my study, where Christian conservatives were concerned. It took years to get access to the internal files of the Federalist Society, CIR, IJ, and the law and economics programs, slowly leveraging the trust I got with one organization to get access to the files and honest recollections of the founders of others. While there are some links between the more libertarian-oriented groups I looked at and Christian conservatives, my judgment was that in building the trust and cooperation of the latter, I would be pretty well starting from scratch. As it was, this slow building of cooperation—and the simple difficulty of tracking down documents that were not kept in any public archive—meant that the book took far longer than I would have liked. My sense was that I might never have gotten that sort of access from Christian conservatives, and even if I did, it would have delayed the book considerably.

Fourth, there was a theoretical judgment behind (with some important exceptions) leaving social and religious conservatives for subsequent authors to grapple with. I spend the whole of Chapter Two reconstructing the emergence of what I call the “liberal legal network” in the legal profession and academy. The most important, and most direct, organizational and intellectual entrepreneurship designed to counter liberal entrenchment outside the courts was not the work of social and religious conservatives. This was especially the case where the legal academy was concerned—the earliest, and most effective attempts to build a non-liberal beachhead in the law schools were engaged in by practitioners of law and economics, who were disproportionately drawn from libertarian sympathizers. None of the founders of the Federalist Society was a religious conservative (they were all either Reaganite fusionists or libertarians), although they were all convinced of the need to create an organization open to them. Finally, there were important links between the people who participated in the law and economics movement and the Federalist Society (and especially those who funded them), and those involved in the secular parts of the conservative public interest law movement. That is, the organizations that I chose to study fit together into a kind of a whole, a network of interlocking organizations, intellectuals and funders, while Christian conservative lawyers (while having some connections to the groups I studied) had a fairly separate organizational history.

Finally, as Somin notes, I argue that the conservative legal movement experienced a kind of “endogenous libertarianism.” That is, the libertarian emphasis of the movement was driven in large part by the context in which opponents of the liberal legal network found themselves. The evidence for this can be found both in the secular and the religious parts of the movement. As Brown notes, most religious conservatives in the law would have preferred to focus their efforts on challenging the inherited understanding of the establishment clause, to permit a greater role for religion in the official conduct of public institutions. They were consistently rebuffed in this, primarily because the overwhelming weight of precedent as well as the dominant intellectual consensus sided with (civil) libertarians. They made a strategic calculation that it made more sense to adapt to the structure of the regime that they were opposed to, and thus shifted their energies to the free speech clause, where they could make basically libertarian arguments about state neutrality.

The same thing was true of the secular conservatives I discuss in the book, especially CIR [Center for Individual Rights]. Neither of the founders of CIR were full-throated libertarians, and in fact some of their earliest projects focused on enhancing the authority of state agents (like school principals and housing authorities) or limiting free speech (by putting teeth back in libel law). The “opportunity structure,” both in an intellectual and a precedential sense, in these cases was not forgiving, and thus CIR became a basically libertarian organization by following the path of least resistance, which involved turning many of the (civil) libertarian precedents they inherited against liberals (most notably in the case of academic free speech). In the case of CIR and religious conservatives, this “endogenous libertarianism” was also driven by the fact that it was libertarians in the legal academy who had done the most to prepare the ground for litigation, by persuading lawyers, judges and the broader intellectual community that alternatives to liberalism were not, to use Jack Balkin’s term, “off the wall.” So, in that sense, I focused more on libertarianism in studying the conservative legal movement because that was where the action was.

That all said, I do think that there is an important book yet to be written about social conservatives in the law. While Brown’s book is excellent, he did not get much if any access to the philanthropists of the movement, or to the internal papers of Christian conservative legal organizations. In addition, he focused mainly on public interest law firms, but not on student organizations like the Christian Legal Society or broader efforts to influence the legal intellectual debate. My sense is that, if a scholar with a strong intuitive sense of the movement was able to get access to the depth of materials on the Christian conservative legal movement that I received, there is at least enough material there for a book that will be interesting, and I imagine also surprising. I hope someone writes it—maybe a VC reader!