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.