Rancor surrounding a powerful liberal lobby and dubious civil-rights decisions has hatched what once may have seemed a strange bird: the conservative legal activist.
The role of the activist lawyer used to be primarily a liberal one. Whether it was the radical National Lawyers Guild or the liberal American Civil Liberties Union, or ACLU, or even whether it was a group with a minority-rights focus such as the legal arms of the National Association for the Advancement of Colored People, or NAACP, and the National Organization for Women, the concept of change through the courts was a collectivist one from the New Deal through the Great Society.
But several factors brought about a change and gave rise to what once would have been an oxymoron: the conservative legal activist.
One factor was that the liberal legal groups were so successful that it only was a matter of time before conservatives got tired of losing by forfeit. Another was that the civil rights lawsuits of the 1960s contributed to the imposition of unpopular and legally dubious remedies such as quotas and busing. This, in turn, gave rise to a generation of legal organizations dedicated to overturning quotas, often using the very statutes and constitutional clauses that had been invoked to justify their imposition.
Another factor for the growth of conservative legal activism was the conjunction of a growing bureaucracy, at both the federal and state levels, constantly giving rise to individual grievances, and the realization by many conservative donors that political and legislative victories, while indispensable, are of no value if they routinely are overturned by the courts. Beginning in the mid-1970s, conservative attorneys started going to funding sources and saying: "Do you want to keep losing by forfeit, or do you want the right also to field a team?"
Former Attorney General Edwin Meese III chairs a monthly coalition luncheon of the conservative legal groups that have Washington offices. He spoke with Insight just after chairing one of those meetings.
"It really started in California while Ronald Reagan was governor," Meese says. "He was trying to reform welfare so as to get those who were not eligible off the rolls, increase benefits for the truly needy and move former recipients into the workforce. There were two groups attempting to thwart those reforms: the liberal think tanks, and some so-called public-interest law firms that were getting funding from the federal government through the Office of Economic Opportunity. But there were no resources on the other side to represent true public interest -- the taxpayer, the ordinary citizen.
"So in 1973 the Pacific Legal Foundation got started. That was the first of what I call the real public-interest law firms -- the ones that represent the taxpayers, the parents, the law-abiding citizens. From California, the movement spread across the country: Mountain States Legal Foundation in Denver; Midwest Legal Foundation (later the Lincoln Legal Foundation) in Chicago; the South East Legal Foundation, the North East Legal Foundation, the Atlantic Legal Foundation, the Washington Legal Foundation -- there are now about two dozen of them across the country," says Meese.
Landmark Legal Foundation, based in Kansas City, Mo., was founded in 1976 as the Great Plains Legal Foundation. It has "one mission" says its president, Mark R. Levin, a former Department of Justice official under President Reagan and Meese (who is a vice president of Landmark): "to promote and defend the United States Constitution and the individual liberties that are guaranteed in it."
"Our litigation is diverse and aggressive," Levin tells Insight. "We have successfully defended school vouchers in Wisconsin against challenges by the ACLU, the NAACP and the teachers' unions. We were involved in fighting busing in Kansas City and in fighting the judicially ordered tax increases that finally were struck down by the Supreme Court. …