Pushing legal institutions rightward

Paul Mirengoff at Power Line has a terrific post about Steven Teles' review of the rise of the conservative legal movement. Conservatives were for much of the twentieth century absent from most influential legal institutions, such as the federal courts, public interest firms, and nationally-prominent law schools. That has changed, and not by accident.

Mirengoff notes that conservatives failed to influence legal institutions in the 1970's, when they imitated the tactics and strategies of liberals. They met with success only after they took a "supply side" approach to the problem. Beginning in the 1980's, conservative lawyers moved American legal institutions in "entrepreneurial, relatively informal, and idea-centric ways."

What Mirengoff (and perhaps Teles, though I have not read his book) fails to mention is that conservatives succeeded also by eschewing libertarianism and communicating true conservative principles and ideas. For example, it was not sufficient to oppose government action generally. That approach to lawyering had (and has) almost no effect upon legal institutions, which are capable of distinguishing between good government actions and bad ones. Conservatives found success only when originalists like Antonin Scalia and Robert Bork began to articulate a theory of constitutional interpretation that opposes those government actions that are inconsistent with the constitutional text. In just over twenty years, originalism has gone from being a fringe theory to being the dominant interpretive mode in the federal judiciary. And though originalists still comprise a minority in the legal academy, we represent an influential and growing minority; liberals are taking us very seriously.

Ideas matter. And the ways in which we communicate ideas matter. These are additional lessons to be learned from the rise of the conservative legal movement.