Is Legal Conservatism As Accomplished As It Thinks?

July 1, 2019

Jesse Merriam

Washington Fellow

The editors of Law & Liberty have kindly put to me the following questions: “Is legal conservatism, in its moment of triumph, as accomplished as it thinks it is? Is it time to celebrate or are there problems on the horizon?” In answering them, it is best to begin with some background on the postwar conservative movement, so I will start there, and then briefly sketch how Election 2016 fits into the movement’s trajectory. Both are critical to what I have to say about the successes, failures, and future of legal conservatism.    

Fusion, Fission, and Trump

By the “conservative movement,” scholars refer to the movement that began with, and was largely defined by, William F. Buckley’s creation of National Review in 1955. That is not to say there was no such thing as the American Right or conservatism before Buckley founded his magazine. Before then, the predominant form of American conservatism consisted of the “Old Right,” a coalition of libertarians and nationalists who opposed the New Deal and American involvement in World War II. But public support for FDR and the war effort created an opening for fresh considerations about what conservatism should mean in postwar America. National Review, more than any other publication at the time, represented this new vision.  

Frank Meyer, one of National Review’s founding editors, described the new “conservative consensus” as a practical and conceptual link between economic libertarianism and cultural traditionalism in resisting the emboldened egalitarianism of the American Left. Brent Bozell would later dub this combination “fusionism.” (As Donald Devine pointed out to Law & Liberty’s readers, this was not something Bozell meant as a compliment.) A critical aspect of fusionism was a staunch opposition to communism as a threat to both economic liberty and the Western tradition. 

Many traditionalists (such as Russell Kirk) resisted fusionism for placing too much emphasis on markets and not enough on the conservative commitment “to religious belief, to national loyalty, to established rights in society, and to the wisdom of our ancestors.” And many libertarians (such as F.A. Hayek) explicitly rejected conservatism for being too nationalistic and hostile toward open systems. Nevertheless, despite resistance from both components, fusionism proved to be a lasting legacy of the conservative movement, quickly becoming absorbed into the Republican Party platform. 

Fusionism would eventually develop into President Reagan’s three-legged stool of conservatism consisting of: 1) economic liberty, committed to limited government, low taxes, and free enterprise; 2) cultural tradition, centered around faith, family, and community; and 3) military interventionism, focused specifically on defeating communism but more generally on advancing American interests abroad.

Yet fusionism was always more of a coalition of convenience (brought together by mutual hostility toward the Soviet Union) than a coalition of substance (brought together by conceptual harmony). It started to come unglued once communism was no longer a global threat, and as a result, over the last 30 years the Republican Party has become increasingly neoconservative in foreign policy and libertarian in economic policy, while paying mere lip service—usually only in the months leading up to a presidential election—to the religious, social, and cultural issues that concern traditionalists.

As Patrick Deneen has astutely observed, traditionalism is “increasingly regarded as irrelevant and even embarrassing by the mainstream conservative movement,” representing as it does the only leg of the stool that is categorically distinct from “liberalism,” in either its current or its classical sense. In a nation whose academic, entertainment, and media industries have been captured by the cultural Left, traditionalists have become the odd leg out. 

The declining role of traditionalism in GOP policy is significant as an electoral matter because, as Christopher Ellis and James Stimson demonstrated in Ideology in America (2012), the “symbolic ideology” (that is, how people identify themselves) of Republican voters is quite traditionalist in orientation, particularly in terms of patriotism, religious beliefs, and social attachments. Meanwhile Republican voters’ “operational ideology” (their policy preferences) is quite similar to Democratic voters, especially when it comes to support for various social welfare programs. 

Likewise, Lee Drutman’s exhaustive analysis of what divides Republican and Democratic voters showed that “the primary conflict structuring the two parties involves questions of national identity, race, and morality, while the traditional conflict over economics, though still important, is less divisive now than it used to be.” This is critical to understanding President Trump’s victories in the primaries and the general election. While President Trump is surely not a traditionalist himself, his America First campaign rhetoric—in preferring the local to the distant, the familiar to the foreign, the texture of the known past to the ether of the unknowable future—resonated deeply with the traditionalist orientation of the Republican base.

President Trump, then, is not merely a destructive force, but also a constructive one—signaling, on the one hand, the possibility of fission, but on the other, the possibility of a new fusion, with a more robust role for tradition in addressing a new world order, one ruptured more by the rise of globalism and the loss of national identity than by the rise of communism and the loss of individualism.

In thinking about legal conservatism and its future, we must consider these destructive and constructive elements, a point we will address at the end of the essay. For now, let us turn to how judicial politics scholars have studied legal conservatism as a social movement. 

Two Critical Questions for Studying Legal Conservatism

Over the past decade, as part of a larger area of research on the relationship between judicial politics and social movements, political scientists have written several books on the organized ways in which law professors, legal practitioners, and political activists have collectively sought to advance a conservative agenda through courts and various legal networks, such as public interest law firms and the Federalist Society. In my research on the subject, I have referred to this as the “legal conservative movement.” The most important work in this field is a book by Steven Teles, The Rise of the Conservative Legal Movement (2008).1

Scholars studying the legal conservative movement encounter two distinct questions that scholars of the broader conservative movement generally do not face: When did it begin, and what are its goals? As explained above, just about all scholars agree that the general conservative movement began in the 1950s. And its goals are at least nominally represented by the three legs of the conservative stool. 

These questions are not as easily answered for legal conservatism. Some scholars begin their inquiries in the early 1980s, with the formation of the Federalist Society, legal conservatism’s most important organization. Some go slightly further back to the early 1970s, with the rise of law and economics. Others go still further back, to the presidential election of 1968, which initiated the “counter-revolution” under the Supreme Court’s Chief Justice, Warren Burger and, even more importantly, which led to a majority of Republican-appointed justices on the Court—a streak beginning in 1970 and continuing to this day.

The starting point a scholar chooses often determines, or perhaps is determined by, the story that that scholar tells about legal conservatism. The temporal selection naturally leads to a particular conclusion about the movement’s goals, from which an assessment of the movement’s successes and failures follows. In this next section, I explore the approach that has received significant media attention in recent times: the narrative that begins with the rise of the Federalist Society.

The Federalist Society and the Triumph Narrative

Scholars who study the legal conservative movement through the rise of the Federalist Society are able to offer a compelling account of the movement’s remarkable growth and success. In under 40 years, the Federalist Society was able to grow, from a group of three alienated law students in 1982, into a 70,000-member organization, one that has accumulated the power to advise Republican Presidents on which lawyers should be made federal judges and which federal judges should be promoted. 

The most notable such book is Amanda Hollis-Brusky’s Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (2015), recognized in 2016 by the American Political Science Association as the year’s best book on law and the courts. Examining several controversial legal cases, Hollis-Brusky demonstrates that Federalist Society affiliations pervade constitutional litigation, from law professors writing law-review articles, to legal practitioners submitting amicus briefs, to judges issuing opinions—all citing one another and repeating mutually reinforcing themes in support of the conservative position. 

Over the past two years, several major media articles have used Hollis-Brusky’s research to argue that the Federalist Society has mounted a right-wing conspiracy within the Trump administration. As a recent Washington Post piece put it, the leaders of the Federalist Society are “Conquerors of the Courts.” In fact, this has become such a hot news topic that, in the two weeks in which I wrote this essay, two more major articles, yet another one in the Washington Post and a Slate piece by Professor Jamal Greene, contended that the Federalist Society is seeking to take American law back to the 1930s.

If we are to believe these accounts, it certainly looks like this is a “moment of triumph” for the movement, which would indeed make it “time to celebrate.” There. I have answered my editors’ questions. Mark Tushnet had it exactly wrong: It was his side that lost, and ours won. Pop the champagne. 

But before the movement’s members and supporters take that first sip, we should consider a few things. As I explained in a Modern Age article last year, many of the cases that Hollis-Brusky cites as evidence of conservative triumph are either not necessarily conservative (for example, various pro-business decisions) or, if they are conservative, they are less than major victories (for example, the “New Federalism” decisions). Moreover, Hollis-Brusky excludes social and cultural issues from her assessment of success,2 which not only makes it much easier to tilt the record toward triumph, but is also at odds with all of the aforementioned political science research showing that our Left-Right division increasingly turns on social and cultural issues, not economic ones.

Okay, so maybe not triumphant, but surely the movement must be “as accomplished as it thinks it is.” Look at all those faculty members, student chapters, and judicial nominations! Maybe just a sip?

Not so fast. The Federalist Society has long denied being a partisan or ideological organization. Even in its founding documents, its leadership proposed that student chapters, in describing the new organization, “should not use the adjective ‘conservative.’” Liberal scholars generally view this professed neutrality as a strategic ploy, but it is undeniably true that many Federalist Society members cannot accurately be described as conservative.  

This is often the case for the most prominent members, many of whom are libertarian and decidedly not conservative on any legal issues relating to faith, family, or community.Accordingly, as our constitutional and political divisions increasingly fracture on these lines, Federalist Society-affiliated law professors increasingly end up on the Left side of the spectrum, supporting such positions as open borders and the constitutional right to same-sex marriage, and even opposing the Republican presidential candidate in 2016

Of course, none of the scholarship on legal conservatism or recent news articles mentions this inconvenient fact, as it would undermine the idea of a “right-wing conspiracy.” Nor do these scholars or journalists acknowledge that, despite those 70,000 members, each law school has only a handful of Federalist Society-affiliated faculty members. The elite law schools have even fewer. And the number at any law school approaches zero if we are limiting the tally to non-libertarians, a distinction vividly on display in the fact that only six law professors in the entire country openly supported the Republican candidate in Election 2016.

But who cares, you might say, that there haven’t been many case victories for conservatives? And who cares if many of the leaders and donors are not conservative? What really matters is that the legal conservative movement has normalized originalism and transformed the very way we talk about constitutional law. That is a triumph in itself, isn’t it? 

Originalism and the Triumph Narrative

In seeking to determine the Federalist Society’s goals, Hollis-Brusky asked leading Federalist Society members to identify the organization’s unifying principle or priority. Originalism, unsurprisingly, was the number one answer.

So, the logic goes, the legal conservative movement is indeed triumphant because it is co-extensive with the Federalist Society; the Federalist Society is principally about promoting originalism; and originalism has spread considerably since its formalization in the early 1980s—to the point that even Justice Elena Kagan said in her confirmation hearing that “we’re all originalists now.”

This reasoning ignores, however, the extent to which legal conservatism has advanced originalism inconsistently and pursuant to an ideological agenda that is not necessarily conservative. For example, in explaining how originalism unites the Federalist Society, Hollis-Brusky cites Daniel Troy as claiming that he affiliates with the Federalist Society “to interact with . . . people who have shared views about Originalism.” But Hollis-Brusky does not mention that Troy’s principal work as a lawyer, in both private practice and at the U.S. Food and Drug Administration, has favored a broad preemption doctrine, in direct conflict with the originalist view of the Supremacy Clause proposed by Caleb Nelson and Justice Thomas

That is not to single out Troy. Outside of Professor Nelson and Justice Thomas, legal conservatives have not shown much interest in the original meaning of the Supremacy Clause as applied to preemption. Notably, this is one of the most important areas of federalism and constitutional litigation, and the original meaning of the Supremacy Clause would seem to cut against the views of the U.S. Chamber of Commerce, one of the Federalist Society’s top donors.  

Likewise, this reasoning disregards how originalism is now practiced to accommodate liberal values and policies. Under the New Originalist approach to “original public meaning,” almost every constitutional controversy that reaches a federal court permits a wide range of originalist resolutions, always ready to be updated to fit the politics of the moment. As I explained in a previous Law & Liberty article, it was not until the legal conservative movement became predominantly libertarian that originalism took on this flexibility, and only then did liberal scholars and liberal-oriented law firms start looking to originalism as a vehicle for advancing liberal causes. 

Many defenders of originalism see in this process a Wechslerian neutralization of constitutional discourse and the restoration of the rule of law.3 But the steps by which this process has occurred have been anything but neutral, in that they involved repeated efforts to fine-tune originalist theory so that it did not entrench outmoded social relations, but instead promoted rather broadly understood linguistic meanings that could be continuously updated with evolving (which is to say, progressive) normative content. As a result, originalists could point to each successive landmark liberal victory (for example, applying the Bill of Rights to the states through the incorporation doctrine, race and gender equality, sexual relations, same-sex marriage) and explain how it fits with the original meaning of the Constitution. This did not neutralize constitutional law; it created yet another juridical tool for concealing the extent and nature of our normative disagreements about law and politics. 

Originalism Killed the Conservative Star?

The legal conservative movement’s alignment with originalism might not have neutralized judicial decisionmaking, but it has neutralized something: conservatism.  

Before legal conservatism got swallowed up by originalism, the former did not mean mere Wechslerian neutrality, which was of course a center-Left, liberal project. That is what makes it so critical where in time we date the movement’s beginnings. Starting the story after the formalization of originalism necessarily excludes some of the most important and interesting aspects of legal conservatism, such as how, in response to the Warren Court’s adventures, National Review and Modern Age (the journal that Russell Kirk established in 1957) regularly featured robust expositions on the proper role of law in sustaining a natural, moral, and cohesive social order. The most enriching analysis of the legal conservative movement would look at how the movement has operated in concert with changes within the general conservative movement. 

In contrast to the early days of legal conservatism, we now find a movement that is largely coextensive with originalism, to the point that the possibility of “a conservative living constitutionalist” is used to strike fear into the hearts of liberals, with the hope that they will finally see the Wechslerian virtues of originalism. In fact Professor Michael Ramsey has observed that “originalism is actually a middle ground between liberal living constitutionalism and conservative living constitutionalism.” If this is right, the movement is even worse off than I imagined, with the legal world playing a one-sided game whereby swarms of liberal living constitutionalists are trouncing a phantom opponent, as a handful of originalists play the role of umpire and tally up the score. 

If the legal Right is going to have an actual movement, it will need a substantive agenda. It will also need some players in the game, rather than mere observers standing on the sidelines.  

Nevertheless, while I must conclude that the movement is certainly neither as triumphant nor as accomplished as many seem to think, by the same token I would not say (to answer the second question with which we began) that trouble is on the horizon. To the contrary, there are signs that legal conservatism, like American conservatism in general, is waking up from a long slumber, exhibited in recent works seeking to engage constitutional law as “constitutional morality”—that is, as an imbricated part of our lived experience, including the sticky and disaggregated arrangements of church, family, and community, rather than a series of airy and capacious linguistic commands whose content can be constantly updated according to new social understandings.4

In future essays, I will explore what a substantive agenda for legal conservatives might look like in the wake of Election 2016. But let me close with this thought: The new conservative agenda must engage how the Constitution relates to the concerns of citizens who wake up each day to a country they decreasingly recognize. If the demolition from the 2016 wrecking ball does not create this change in the legal world, I think it is safe to say the next populist uprising will. Then it will truly be time to celebrate. We can at least drink to that.

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[1] It was Professor Teles, incidentally, who inspired my interest in the subject while I was a Ph.D. student at Johns Hopkins University. Granted, I have come to adopt a different approach from Teles, beginning with my insistence on the term “legal conservative movement,” which is to say the legal variant of the general conservative movement. Teles, by contrast, speaks of the “conservative legal movement,” suggesting it is the conservative variant of a “legal movement.” In my view, the general conservative movement is too often ignored in this area of scholarship, so I prefer phrasing that emphasizes the relationship between legal conservatism and the general conservative movement that began with Buckley’s creation of National Review. But I am indebted to Teles for teaching me about the subject and inspiring me to pursue this line of research in my career.

[2] No social issue other than gun rights is even mentioned in Hollis-Brusky’s Ideas with Consequences (Oxford University Press, 2015). In fact, in the 175 pages of the body of the book, there is only one reference to abortion and gay rights (p. 40), and there is not a single reference to Christianity (or even the concept of religion) or race relations (or even the concept of race or ethnicity).

[3] Here I am referring to the project set out by Columbia law professor Herbert Wechsler in his famous 1959 article in the Harvard Law Review, “Toward Neutral Principles of Constitutional Law,” in which he argues that judicial review is defensible to the extent that it rests on neutral or general principles of law.   

[4] I have in mind here such divergent works as Bruce P. Frohnen and George W. Carey, Constitutional Morality and the Rise of Quasi-Law (Harvard University Press, 2016), Thomas G. West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (Cambridge University Press, 2017), and Peter Augustine Lawler and Richard M. Reinsch II, A Constitution in Full: Recovering the Unwritten Foundation of American Liberty (University Press of Kansas, 2019). These works adopt varied approaches to American constitutionalism, but what they have in common is that they view the Founding and the Constitution as being expressed not only in text but also through historically-tethered arrangements of moral, familial, and communal life. 

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Originally published by Law & Liberty.