The Home of American Intellectual Conservatism — First Principles

April 23, 2019

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The Conservative Legal Movement: Still Wondering How They Got There
Daniel J. Flynn - 03/11/09

The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton Studies in American Politics) (Princeton University Press, 2008) begins by juxtaposing the naivety of Nixon aide Pat Buchanan, bragging in a 1972 memo that the 37th president had reoriented the Supreme Court rightward, with the won’t-get-fooled-again mentality of conservatives in response to George W. Bush’s ill-fated 2005 nomination of Harriet Miers to the High Court. “The contrast between the two vignettes is telling,” author Steven M. Teles writes. “The inability of Nixon’s four appointees to transform the Supreme Court taught conservatives that electoral success was not enough, in and of itself, to produce legal change: conservatives’ failure in the Court reflected a deep imbalance between their forces at the elite level and those of their liberal counterparts.”

Teles’s then/now comparison effectively highlights the maturation of conservatives. It also illustrates the author’s bowdlerization of why that maturation came about. Buchanan’s memo strikes modern ears as absurd because just months later the Supreme Court, in an opinion written by an Eisenhower appointee and joined by several Nixon appointees, invalidated the abortion laws of the states through Roe v. Wade. Harriet Miers so offended conservatives primarily because her support for Roe v. Wade was a matter of public record. That this is a crude retelling of the history doesn’t invalidate it as the crux of the history. Though not a sin of omission on par with a history of the abolitionist movement containing a few glancing references to slavery, Teles’s weird exclusion of abortion—and gay marriage, school prayer, and other moral and religious questions before the courts—nevertheless undermines the idea that The Rise of the Conservative Legal Movement is a book about the rise of the conservative legal movement. The book has a narrower scope, ably chronicling the evolution of libertarian-oriented public interest law firms, the emergent scholarly field of law and economics, and the influence of The Federalist Society.

That law and economics, a field virtually non-existent at law schools just a half century ago, is today a subject taught at most major law schools is the product of one man and one well-endowed foundation. Though the aims of Henry Manne and the John M. Olin Foundation coincided, their strategies did not.

If not for the John M. Olin Foundation, the application of economic principles to law might now be regarded as the crank obsession of a few academics. The foundation poured tens of millions of dollars into the fledgling discipline from the 1970s onward, dwarfing the amount given to the field by other conservative philanthropies. Top law schools rushed to milk the law-and-economics cash cow and promptly established such programs with Olin money. “The focus on elite schools was driven by the belief—especially strong at the Olin Foundation—that intellectual credibility and distinction are produced by only a handful of institutions,” Teles writes. “This explains the foundation’s repeated concern that it create a ‘foothold’ or ‘beachhead’ and ‘keep a candle lit in the darkness’ at top-ranked schools.” More than hunch buttressed this view. As Teles points out, three out of every four law clerks serving the Rehnquist Court came from just seven elite law schools.

Rather than act as a missionary amid the heathen, Henry Manne opted to establish his own church, the Law and Economics Center (LEC). Armed with stubborn determination and a clear vision, Manne’s tenacity in the face of repeated setbacks is an inspiring tale of the power of perseverance. His 1986 takeover of the George Mason School of Law, complete with wholesale firings of untenured-faculty and buyouts of suspected opponents, transformed a milquetoast law school into a giant Law and Economics Center. Teles’s retelling of the “bloodbath” reads like something out of The Godfather. Manne’s hardball tactics might appear coldhearted absent of context. Manne, however, played by the opposition’s rules. The University of Miami, which enjoyed the prestige but not the politics of his LEC, had reacted to Manne’s 1980 decision to depart by changing locks, posting armed guards, and ordering offices vacated. When Olin then encouraged Cornell to consider employing Manne, tenured radicals killed the planned appointment. At Emory, where Manne’s LEC relocated after Miami, the Olin Foundation’s support for the university’s attempt to absorb the LEC undermined Manne’s desire for independence. So, the Johnny Appleseed of law and economics witnessed his relationship with another affiliate institution deteriorate—and the travelling Manne was forced to move his LEC again. Rather than deal with yet another ideologically hostile institution, Manne decided to become the institution. Thus, in 1986, Manne transformed George Mason School of Law, a seven-year-old law school, into the fountainhead of law and economics, one of America’s most respected law schools, and home to Nobel laureates James Buchanan and Vernon Smith.

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