Support Structures and Constitutional Change: Teles, Southworth, and the Conservative Legal Movement

Abstract

This essay reviews two recent works in political science on the American conservative legal movement: Steven M. Teles's The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008) and Ann Southworth's Lawyers of the Right: Professionalizing the Conservative Coalition (2008). It examines these books in the context of a larger debate over the variables that best explain constitutional change in general and the recent “conservative counterrevolution” in Supreme Court jurisprudence in particular. It shows how these studies build on the scholarship of Charles Epp, who argued in The Rights Revolution (1998) that serious constitutional change requires not only the right cast of characters on the court, but also a strong “support structure” in the legal profession and civil society. Finally, it draws on the author's own research on the Federalist Society for Law and Public Policy to illustrate some important avenues for further inquiry.

Higher Law: Can Christian Conservatives Transform Law Through Legal Education?

“…The Civil Rights Movement's activities in the courts during the mid‐twentieth century was supported in large part by the parallel alternative strategy in Howard Law School and other Historically Black Law Schools (Epp ; Johnson ; Kluger ; Tushnet ). The conservative counterrevolution began in earnest with the supplemental strategy of The Federalist Society for Law and Public Policy Studies which has, as scholarship has documented, served to train and credential a generation of conservative legal academics, litigators and judges who have been able to effectively infiltrate mainstream law school faculties and positions of power (Hollis‐Brusky , , ; Southworth ; Teles ).…”

“…This is, in part, a result of the widely acknowledged supporting role law schools and legal education have played in a series of high‐profile revolutionary legal movements in the United States over the last century. From the New Deal Revolution in the 1930s and 40s (Irons ; Kalman ; Teles ) to the “Rights Revolution” of the mid‐twentieth century (Epp ; Johnson ; Kluger ; Tushnet ) to the conservative counterrevolution currently underway on the Supreme Court (Hollis‐Brusky , , ; Southworth ; Teles ), a robust body of scholarship has documented how these changes have been, in part, an outgrowth of changes in law schools, legal training, and education. Moreover, recent high‐profile investments in higher education by conservative patrons and donors such as the Koch Brothers, the Olin Foundation, and the Scaife Foundation to establish conservative “beach heads” in the legal academy for conservatives who reject the liberal legal orthodoxy (Mayer ; Miller ; Teles ) demonstrate the widely held belief that American law schools are a critical lynchpin in the battle for control over the law.…”

Lawyers for God and Neighbor: The Emergence of “Law as a Calling” as a Mobilizing Frame for Christian Lawyers

“…As a result, a movement's collective identity can be, and might be required to be, a continually evolving and maintained thing (Friedman and McAdam 1992; Taylor and Whittier 1992; Hunt and Benford 2007; Williams 2007). Given the work of legal movement scholars such as Epp (1998), Southworth (2008), Teles (2010), and Hollis‐Brusky (2011), however, both the legal academy and legal activist organizations are highly likely to operate as nodal points for the emergence and ongoing development of pertinent collective identities for the legal profession. Although these scholars do not directly discuss collective identity in terms of legal movement development, they do persuasively demonstrate that legal movements often start and/or are fostered by such institutions and that they eventually diffuse into or interact with other aspects of the legal profession 10…”

“…Every speaker (individual and institutional) articulating the TOCW mode of law as a calling, with the exception of one, 56 could be identified as right‐leaning. Moreover, many of the institutional speakers expressing the TOCW understanding (Alliance Defending Freedom, Regent Law School, Liberty Law School, CLS Law School Ministries) together form an important part of the “support structure” (Epp 1998; Southworth 2008; Teles 2010; Hollis‐Brusky 2011) for the burgeoning conservative Christian legal movement (see, e.g., Brown 2002; Heinz, Paik, and Southworth 2003; Hacker 2005; den Dulk 2006). Thus, not only is the TOCW group ideologically/politically cohesive, but it is also linked to a broader, preexisting movement of individuals and institutions that already has some momentum as a movement.…”

How Bureaucracies Listen to Courts: Bureaucratized Calculations and European Law

“…Success in using rights, then, depends on having a substantial supporting coalition 2 . Such a coalition can draw on legal expertise and territorially diffused supporters to file a case where it is most likely to have effects, to make the arguments in the ways that serve it best, and thereby to maximize the odds that it obtains the decision it seeks from the court (McCann 1994; Epp 1998; Hollis‐Brusky 2011). It can then take advantage of the decision: by exploiting the agenda‐setting powers of a court case and any echoes in public opinion, by lobbying politicians and bureaucrats with the new threat of more and more effective litigation, and by engaging in debates among the policy makers and professionals who will have to implement the decision (Cichowski 2007; Bell 2008).…”