Conservatives and the Courts
After the end of George W. Bush’s second administration and the beginning of a new era in American politics, the conservative legal movement is looking back on a little over a generation of institutional growth and rising political and intellectual influence. Stephen Teles, in his thorough and insightful analysis, The Rise of the Conservative Legal Movement, has ably described the movement’s ascent and accomplishments: a high degree of professionalism, financial stability, organizational sophistication, intellectual respectability and integrity.1 Those accumulated assets will be put to a severe stress test in the years ahead, in what promises to be a very difficult environment.
The conservative legal movement’s ascent has coincided with an era of Republican dominance over American politics. The founding of the Federalist Society, the movement’s organizational backbone, dates to the early years of the Reagan era, as does the formulation of judicial “originalism” as the movement’s unofficial ideology.2 The Reagan-Bush years produced measurable success on many fronts: conservative judicial appointments to the Supreme Court and the appellate courts; organizational growth and increased visibility and respectability; and substantial policy reform in certain regulatory arenas, especially antitrust law. The Clinton years did not seriously derail the movement. The 1994 election, resulting in the Republican capture of the House of Representatives, effectively removed any threat of a sharp leftward lurch at the level of national politics. President Clinton’s impeachment by the House of Representatives in his second term cemented the movement’s confidence in being on the “right side” in the public and political debate over constitutional and rule-of-law values. And while the Clinton administration did of course appoint a substantial number of liberal-to-moderate judges (including Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg), the large contingent of predominantly youngish Reagan-Bush appointees had a profound lag effect. (Conservative litigation groups scored many of their most significant victories in those years.)3 The movement resumed its upward trajectory under the Bush administration, which staffed the Department of Justice