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It was therefore surprising when a leading conservative jurist, Judge J. Harvey Wilkinson III of the U.S. Court of Appeals for the 4th Circuit, denounced the ruling as a shameful piece of judicial activism. Heller, Wilkinson wrote in the Virginia Law Review, “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”
It was a classic conservative complaint, except that Wilkinson’s targets sat on the right side of the bench. And this was no isolated incident. With John Roberts coming into his own as chief justice of a right-leaning Court, conservative anxiety about libertarian-flavored judicial activism has been heating to a boil.
In the 2010 campaign finance reform case Citizens United v. FEC, for example, the high court overturned parts of multiple precedents that had upheld restrictions on political speech. In response, Stuart Taylor Jr., a legal commentator widely respected on the right, said the Court’s conservatives had “forfeited whatever high ground they once held in the judicial activism debate.” By overturning precedents and nullifying portions of federal law, Taylor worried, the Court’s conservative majority had set an example that liberals would be all too happy to follow.
The most visible split yet occurred in the run-up to the March 2010 oral arguments in McDonald v. Chicago, in which the Supreme Court considered the constitutionality of the Windy City’s handgun ban. With the Court preparing to rule for the first time on whether the Second Amendment applies to state and local governments (Heller applied only to the federal government, which oversees Washington, D.C.), conservative and libertarian groups openly battled one another over legal strategy and constitutional interpretation. In the end, the conservative National Rifle Association successfully lobbied the Supreme Court to take 10 minutes of argument time away from the libertarian lead attorney, Alan Gura (who had successfully argued Heller), and hand it over to the NRA’s Paul Clement, who as George W. Bush’s solicitor general had angered gun rights activists (including the NRA) by urging the Court to adopt a relatively deferential approach to gun control. The oral arguments in McDonald, which highlighted differences over how the Second Amendment should be applied to the states, left many libertarians deeply angry at the Roberts Court and wondering if the conservative-libertarian legal alliance was finally coming apart.
“Now that conservatives form a majority on the Supreme Court and the lower federal courts, the fault lines are emerging between religious conservatives and libertarians, moderates and radicals, originalists, proponents of judicial restraint, and result-oriented conservatives,” says Doug Kendall, the president and founder of the Constitutional Accountability Center, a liberal think tank that has worked with—and against—many figures in the conservative legal movement. “The challenge for conservatives, now that they are in charge, is to figure out what they truly believe in, rather than simply what they oppose.”
They won’t be reaching a consensus anytime soon. Although libertarians and conservatives are routinely lumped together, even by seasoned legal journalists, there are profound differences between them over matters of law. With both libertarians and conservatives increasingly turning to the courts to advance their agendas, and with major legal battles brewing over contentious issues like gay marriage, health care, financial reform, and terrorism, these fault lines have the potential to reshape the legal landscape and affect the life, liberty, and property of every American for generations to come.
A Big Tent
The conservative legal movement occupies one of the biggest tents in American politics, with a membership ranging from religious traditionalists to gay-friendly libertarians who shouldn’t really be called conservatives at all. The movement’s origins lie in the political backlash against the Supreme Court’s perceived liberal activism during the 1960s and ’70s, when it issued landmark decisions legalizing abortion, giving defendants procedural safeguards against self-incrimination, endorsing school busing, applying “heightened” judicial scrutiny to alleged sex discrimination by the government, limiting the scope of executive power, and loosening the eligibility requirements for federal welfare programs. In the eyes of many conservatives, the Court wasn’t just fulfilling the liberal wish list; it was inventing new rights previously unrecognized in constitutional law.
As David Kennedy—a co-founder of the Institute for Justice, a libertarian public interest law firm—told Steven Teles, author of the 2008 book The Rise of the Conservative Legal Movement, there “was an enormous sense of political disfranchisement” among the opponents of those decisions. “With the lessons taught by the leftist activists of the sixties and early seventies in their use of the courts to obtain results which they were unable to obtain politically,” Kennedy explained, “there developed a movement to use the same tactics on behalf of more traditional, more conservative, more libertarian causes.”
Several organizations soon formed to carry out that mission, including the Pacific Legal Foundation (founded in 1973), the Landmark Legal Foundation (founded in 1977), and the Washington Legal Foundation (also founded in 1977). They filed amicus briefs, challenged various government regulations, and pursued conservative and/or libertarian policy goals—both in and out of court.
The most significant early development came with the formation of the Federalist Society. Founded in 1982, the Federalist Society functions as both a legal network, with law student and lawyer chapters around the country, and an academic seminar, sponsoring highly respected conferences and debates that draw top-notch speakers and participants from across the political spectrum. Much of the society’s attention is focused on attracting and nurturing conservative legal talent. That focus has paid off with the placement of several former members in high-ranking government positions, most notably Supreme Court Justice Antonin Scalia, a former faculty adviser to the society’s University of Chicago chapter. Since the Federalist Society doesn’t take official positions on public policy questions, its membership is as wide-ranging as the conservative legal movement in general. As a result, even the most conservative member has been exposed to libertarian legal ideas.
Another important milestone came when President Ronald Reagan appointed conservative lawyer Edwin Meese III as attorney general in 1985. An aggressive critic of the liberal legal establishment, Meese made judicial restraint, which had long been a conservative rallying cry, into a central part of Reagan’s domestic agenda. “What, then, should a constitutional jurisprudence actually be?” Meese asked in a 1985 speech to the American Bar Association. “It should be a jurisprudence of Original Intention.” That meant judges should exhibit “a deeply rooted commitment to the idea of democracy” and to the choices made by voters and their representatives. Writing in The New York Law School Law Review a decade later, Meese said this approach was meant to undo “more than a quarter century of judicial activism, in which the text of the Constitution, precedent, and certainty were cast aside in favor of wild flings of judicial fancy.”
The movement’s first great legal victories came next, thanks to the formation of the Center for Individual Rights in 1989 and the Institute for Justice in 1991. In United States v. Morrison (2000), the Center for Individual Rights convinced the Supreme Court that portions of the 1994 Violence Against Women Act exceeded Congress’ constitutional authority to regulate interstate commerce, while in Gratz v. Bollinger (2003), the group persuaded the Court to strike down the University of Michigan’s race-based admissions policy for undergraduates. The Institute for Justice won key victories in Zelman v. Simmons-Harris (2002), where the Supreme Court rejected an Establishment Clause challenge to Ohio’s school voucher plan, and Granholm v. Heald (2005), where the Court nullified Michigan and New York laws prohibiting out-of-state wineries from shipping their products directly to consumers on grounds that the laws were unconstitutional barriers to interstate commerce.
Uniting against a common liberal enemy turned out to be much easier than agreeing on controversial political issues once the movement gained enough clout to start winning cases. In particular, conservatives and libertarians during their decades in the wilderness papered over profound divisions over one of the most fundamental questions in American law: the proper role of the courts.
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