Professor Steven Teles of Johns Hopkins University and Mark Tushnet, the William Nelson Cromwell Professor of Law at HLS, debated the rise of the conservative legal movement as well as its current and future prospects at a time when conservative and libertarian influence is shrinking in the legal and political spheres on February 19. The discussion was sponsored by the Federalist Society.
Teles focused his remarks on the portions of his new book, Rise of the Conservative Legal Movement, regarding the formation and growth of the Federalist Society. According to Teles, those outside of the conservative legal world often think that the Federalist Society only “hunts Democratic presidents and controls judicial appointments.”
In fact, Teles described the organization’s key focus as “boundary maintenance,” which he learned by accessing early founding documents and drafts by original Federalist Society members. These organizers saw the example of the Young America’s Foundation and the constant internal conflict which plagued that organization. To remedy this, early Federalists sought to keep their new group as inclusionary and possible.Their goal was “to create an organizational structure to keep libertarians and social conservatives together,” said Teles. In that respect, the Federalist Society has, at numerous times, declined to expand its scope into other areas. After the failed confirmation of Judge Robert Bork in 1987 and the refusal of the American Bar Association to rate him as “highly qualified,” some members and non-members wanted the Federalist Society to begin their own judicial rating system. Leaders refused, according to Teles, because they did not want to “push the Society too much into actual politics” and decided than any “involvement [in judicial appointments] be informal rather than formal.”
Likewise, some members and activists urged to group to partake in litigation for conservative public interest causes and even offered to fund such an effort. Again, Teles remarked, early founders of the Society declined because such an expansion would, “threaten what [the Federalist Society] was already doing well.”
Teles took time to distinguish “the Society as such from the network the Society creates.” According to Teles, the Society has both direct and indirect influences on law schools and the conservative legal movement. Directly, Federalist Society chapters “[are] designed to create a parallel curriculum in the law schools [and] . . . to create a safe space for conservatives.” Indirectly, the Federalist Society is a “provider of public goods to the conservative movement” in that it facilitates recruitment, human capital, social capital, and cultural capital. The latter is uniquely important to members, according to Teles’ research, in that it seeks to “take away the stigma that was associated with conservative ideas.”According to Professor Steven Calabresi of Northwestern University Law School, a co-founder of the Federalist Society, the original members “didn’t want to turn [the Society] into another Dartmouth Review,” or what Teles described as “caricatures of themselves.”
Tushnet responded to Teles and by providing his prediction for the future of the Federalist Society and the conservative legal movement. Tushnet posited that “cultural capital can be accumulated and it can be destroyed.” The movement is at risk, according to Tushnet, because the shadow of the Bush administration has made “conservative legal ideas seem no longer credible.” Tushnet blames the so-called “torture memos,” authored by former deputy assistant attorney general in the Office of Legal Counsel and current law professor at the University of California at Berkeley John Yoo, for precipitating that loss of credibility.
Professor Teles admitted this potential problem, stating that “there should be a stigma [around] John Yoo.”
Tushnet also claimed that human and social capital are closely tied to the existence of Republicans in government. “The question for the future is what happens when the size of that pipeline [of positions in government for conservatives] narrows dramatically,” said Tushnet.
Tushnet added, “Given the programmatic goals of the conservative movement . . . there are no outside-the-government jobs” that can consistently take the place of federal employment. While jobs will be available in firms for conservatives excluded from government, positions in those firms are dependent on the administrative state. This tension, according to Tushnet, will force the conservative legal movement to regress in significance and power.
Teles responded to Tushnet’s predictions by admitting that the conservative movement and organizations like the Federalist Society do face challenges: “[there is] an open question about what libertarians do. Libertarians are worried that their brand is being damaged by association [with conservatives].”
Teles also stated that an alternative to government positions during times of Democratic control of the federal government is an expansion in the conservative and libertarian “public service pipeline, [since] their only allies are in the judiciary.” Such an expansion is occurring, but its effects are still too early to assess fully.The Federalist Society could also grow its role as an alternative to the American Bar Association by providing similar services, such as continuing legal education and networking. “What remains . . . is the counter-ABA function,” said Teles.
Only time will tell whether Teles’ vision of continued growth or Tushnet’s vision of legal marginalization will beset the conservative legal movement and its largest player, the Federalist Society.