The rise of the conservative legal movement

Over at Firedoglake there is an interesting discussion going on in the comments to a blog post between readers and Steven M. Teles, the author of The Rise of the Conservative Legal Movement.

There is no question in my mind that this country’s legal community has become enormously more open to arguments that assume the wisdom of unregulated free markets and the primacy of property rights in the 28 years since I began law school. “Law and Economics,” an ill-defined legal movement that exclusively applies economic criteria to legal decision-making has gone from being a set of arguments to consider on issues that plainly were economic in nature to an all-encomp0assing explanation of legal decision making in any and all situations.  The Federalist Society, an enormously well organized and well funded organization that coordinates the activities and thoughts of its members from cradle (their first days in law school) to grave (lifetime appointments on the Supreme Court), has gone during that time from non-existent to enormously influential. As the post explains:

Legal academics shape the ways in which judges think and in which bureaucrats administer programs. Judges for their part play an active political role, making decisions that define the contours of politics, often telling elected politicians what they can and cannot do. And lawyers often become politicians. Hence, the law is a key arena of political battle. A generation ago, conservatives were badly out-gunned in this arena. They were badly outnumbered and intellectually underpowered. Now, they are in a position of considerable importance. Republican appointees are a majority on several key appelate courts. Conservative ideas about the limits of politics and the vital importance of markets have reshaped the law’s intellectual basis. And the US Supreme Court has shifted sharply to the right.

Thus, as Rachel Morris puts it, Teles’ book explains the conservative impact on our legal system not as some sinister right-wing plot but, rather, as an intellectual movement:

The story of how conservative lawyers extracted themselves from the wilderness is often cast as a sinister tale, as if the Federalist Society were an affiliate of the hooded and robed cabal that Tom Cruise infiltrates in Eyes Wide Shut. Steven Teles, a political scientist at Johns Hopkins University and a fellow at the New America Foundation, offers a more rational take in The Rise of the Conservative Legal Movement, and in a new article in Studies in American Political Development. However, with Alberto Gonzales’s blank stare lingering in the mind’s eye, Teles’s assessment still sounds quite outlandish: he suggests that the real secret of the movement’s success was its thirst for ideas and intellectual debate.

I’ll follow the discussion with Teles closely. I highly recommend it.

Foreign law, the Federalist Society’s view that the U.S. is better than the rest of the world, and censhorship

I now have a bit better idea of where the opposition to citation to foreign law (discussed in my last two posts) comes from.  It’s the belief that the U.S. is so exceptional there’s no point in looking to the “socialist constitutional courts of Europe.”  That’s what Steven Calabresi, a law professor at Northwestern and co-founder of the Federalist Society writes in the September 20 New York Times:

Those of us concerned about citation of foreign law — your article quotes me as one of them — believe in something called American exceptionalism, which holds that the United States is a beacon of liberty, democracy and equality of opportunity to the rest of the world. We think that it is a good thing that constitutional liberties like freedom of speech and of the press are protected more vigorously in the United States than in any foreign country. . . .

The country that saved Europe from tyranny and destruction in the 20th century and that is now saving it again from the threat of terrorist extremism and Russian tyranny needs no lessons from the socialist constitutional courts of Europe on what liberty consists of.

I think that considering the U.S. so exceptional it has no need to even consider the views of foreign courts xenophobic is, after all, not off base.  The first Chief Justice of the United States Supreme Court, John Marshall, himself stated that the opinions of British courts “are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide.”

Merely dismissing the decisions Western European countries have reached on profound legal and moral issues (including the execution of juveniles) as the decisions of “socialists” unworthy of even being considered by us “exceptional Americans” is not argument — it’s name calling and egocentricity.  I don’t see what the difference is between law review articles, British courts, or any other source that might be considered the opinion of  wise people who have maturely studied the subject they are opining on.  Foreign court decisions may be politicized, but of course U.S. court decisions, laws, and regulations are exceedingly political too: it’s all politics, whether in the foreign courts, the law reviews, or the U.S. Supreme Court.  By that I don’t mean to be a cynic or a hard core Legal Realist — rather, I mean it’s all argument.  If one is persuaded that the fact the U.S. was the only western industrialized nation that permitted the execution of juveniles made doing so “cruel and unusual,” then why should one not be permitted to consider that fact?  Justice O’Connor explained why she wasn’t convinced by that fact, but she explained why with counter-argument, not by suggesting the argument was illegitimate.

Clarence Thomas, Antonin Scalia, Samuel Alito, and John Roberts all are or have been members of the Federalist Society, of which Professor Calabresi (a former student of Scalia) was a co-founder.  I presume, therefore, that Calabresi speaks for them when he states that the U.S. is just too exceptional (and other countries too “socialist”) to even allow the courts to look at other countries’ laws in determining what U.S. law is or should be.

It is their views I consider un-American.  Their views suggest the courts should be censored.  It is one thing, as I’ve written, to not be persuaded by the views of other countries.  It is censorship, however, to suggest judges cannot even consider those views.  Who better represents the source of American Jurisprudence than John Marshall?  Are no jurists from other countries wise men who have maturely studied the subjects they decide?  And if we forbid reference to foreign law, why not forbid reference to law review articles, which, after all, generally advance the idiosyncratic views of their authors and rarely have any influence whatsoever on an actual lawmaking?

The sooner we get over “American Exceptionalism” and realize we learn more and make better decisions the more we consider the opinions of other wise men who have studied the same subjects we are studying, the sooner we’ll be better off.

But one more word on the Federalist Society.  If you pay attention, its members spout an unerring common line on issues they’ve identified as important.  They sometimes remind me in their methods of organization of Bolsheviks, who went out into the world with their marching orders to spread the Soviet Communist Party’s word.  Professor Calabresi in his letter to September 20th’s Times makes clear the Federalist Society leadership’s view on whether U.S. Courts should even be allowed to refer to foreign law.  Is it any wonder that in the Times article provoking Calabresi’s letter quoted Scalia, Roberts, and Alito in ways entirely consistent with Calabresi’s and the Federalist Society’s views?