THE OTHER RIGHTS REVOLUTION: CONSERVATIVE LAWYERS AND THE REMAKING OF AMERICAN GOVERNMENT

Vol. 27 No. 3 (April 2017) pp. 49-52

THE OTHER RIGHTS REVOLUTION: CONSERVATIVE LAWYERS AND THE REMAKING OF AMERICAN GOVERNMENT, by Jefferson Decker. New York: Oxford University Press, 2016. 284 pp. Cloth: $99.00. ISBN: 9780190467302. Paperback: $29.95. ISBN: 9780190467319.

Reviewed by Amanda Hollis-Brusky, Department of Politics, Pomona College. Email: amanda.hollis-brusky@pomona.edu.

Jefferson Decker’s THE OTHER RIGHTS REVOLUTION is the latest addition to a growing body of literature on the rise and influence of the conservative legal movement (Teles 2008, 2010; Southworth 2008; Hollis-Brusky 2011a, 2011b, 2013, 2015; Staszak 2015). Drawing on an impressive array of archival sources, Decker tells a careful and richly detailed political history of how lawyers and legal organizations from the American west played a pivotal role in the foundation and ideological direction of the conservative legal movement. Using detailed case studies of three conservative public interest law firms – the Pacific Legal Foundation (PLF), the Mountain States Legal Foundation (MSLF) and The National Legal Center – Decker shows how a set of distinctly western ideas and legal strategies “went national” (p. 7) in the 1980s with the presidential election of former California Governor Ronald Reagan.

Thoroughly researched and lucidly written, THE OTHER RIGHTS REVOLUTION offers a novel interpretation of the rise of conservative legal movement - one that centers a different set of actors, ideas and institutions than has previous work in this area and, in doing so, makes a valuable contribution to the origin story of this movement. It also gives the reader a close-up perspective on the challenges and opportunities movements face in building a “support structure” (Epp 1998; Hollis-Brusky 2011a) for legal mobilization, and why this matters. While the deep-dives into the internal histories, organizational memos and professional trajectories of the dozens of actors involved in the case studies featured in THE OTHER RIGHTS REVOLUTION might make it difficult for the otherwise uninitiated to follow (read “undergraduates” here), this book is an absolute must-read for scholars and graduate students doing work in this area.

The bulk of Decker’s political history spans the time period from 1971 to 1985. During this time period, as Steven Teles (2008) first chronicled, the conservative legal movement underwent an intentional and strategic period of elite institution building – investing in think tanks, public interest law firms, academic appointments and campus organizations such as the Federalist Society for Law and Public Policy Studies. Decker, like other scholars before him, shows how documents such as the “Powell Memo” (39-54) and the “Horowitz Report” (119-122) inspired a wave of institution building designed to counter-balance the legal and political influence of the liberal elite.

But THE OTHER RIGHTS REVOLUTION’S unique contribution comes in recognizing and chronicling how the form and direction of this conservative institution-building movement that made its way to Washington, D.C. was shaped and influenced by ideas and actors from the American west. Specifically, Decker illustrates how the anti-regulatory agenda that became synonymous with the Reagan administration was initially developed by western public interest law firms responding to local legal battles between business development and environmental preservation (p. 7). A particularly vivid and fascinating example of this is Decker’s retelling of the “Sagebrush Rebellion” of the late-1970s, where a group of Western representatives, business interests and organizations, “unhappy with the federal management of public lands” (p. 86) began to challenge the legal basis for federal ownership of those lands in court (pp. 86-94). Decker shows how the alliances these cases built between conservative interests and public interest law firms and the novel “intellectual capital” (Hollis-Brusky 2013, 2015) these groups developed to support their legal claims translated into a shared “constitutional vision” that these groups would later take to Washington, D.C. to help the Reagan administration “rein in the federal regulatory Leviathan” (p. 94).

The second half of THE OTHER RIGHTS REVOLUTION at first recounts a familiar history of the Reagan Justice Department, where “movement” lawyers (Fried 1991) zealously worked to deregulate and disempower the administrative state from within the belly of the executive branch beast (Clayton 1992; Fried 1991; Johnsen 2003; Teles 2010; Hollis-Brusky 2011b). But in Decker’s narrative, this familiar history is recast and reinterpreted in light of the case studies presented earlier in the book. We see legal and constitutional ideas and theories of property, the Takings Clause, and deregulation taking hold and being advanced by actors within the Reagan administration (183-210) but, thanks to Decker, we now see these ideas as distinctly western, as traceable to the early battles fought by PLF and MSLF over development and preservation in the west.
But there is also a fair amount of new information presented in the later chapters of THE OTHER RIGHTS REVOLUTION. In Chapter 6, for example, thanks to Decker’s careful digging through the archives, we witness the internal struggle over the future of public interest law within the Reagan administration itself. Decker shows how the enthusiasm for defunding the “public interest law left” (pp. 141-147) came into direct conflict with the interests and goals of conservative public interest law firms like those Decker explores in the first half of the book. Liberals and conservatives, Decker explains, had both benefited from the funding and fee-shifting statutes that had allowed the creation of “private attorney generals” (p. 141) as a check on government and agency overreach. Axing these subsidies for the left would have benefited the Reagan administration in the long-term, but would have handicapped conservative public interest lawyers from acting as a check on future Democratic administrations.

One of the things I appreciated most about the book is Decker’s ability to situate his historical narrative in THE OTHER RIGHTS REVOLUTION within the related fields of political science and sociolegal studies – and to do so in a way that demonstrates more than just a passing knowledge of these fields and their relevant insights. This is on particular display in Chapter 1 (“The New Liberal State”), where Decker puts THE OTHER RIGHTS REVOLUTION in direct conversation with Thomas Burke’s LAWYERS, LAWSUITS AND LEGAL RIGHTS and Charles Epp’s THE RIGHTS REVOLUTION (pp. 33-35). Presenting the structural, political and historical scholarship on the several factors that encouraged and nurtured the development of public interest law allows Decker to provide a better-situated narrative of how conservatives were able to coopt these structures for their own ends, and to what effect. These interdisciplinary connections and insights significantly enhance the book’s attractiveness across the social sciences and widen its audience and potential readership.

A few obligatory nits (and they are just that, nits): I think Chapters 3-5 might have benefited from a more chronological rather than firm-centric structure. With each public interest law firm discussed we are taken back in time to the founding and carried forward to the late-1970s, only to be transported back again when a new chapter – and a new firm history – begins. The way in which these early chapters move back and forth through time can be difficult to follow, especially if the reader is not familiar with the broader political context. This was the principal critique of one of my undergraduates who read the book and one reason I might be hesitant to assign the book in an undergraduate course.

I also found myself wishing that the analytical insights that Decker laid out so compellingly and articulately in Chapter 1 were integrated into the historical case studies a bit better. As it stands, these insights are presented at the beginning and then, again, recalled in the Epilogue but not really woven throughout. The middle part of the book is narrative-heavy, focusing on the presentation of facts, people, and events. These chapters focus on the “what” but don’t actively recall the framework presented in the first chapter to help explain the “why.” These analytic connections are, for the most part, left to the reader to remember and apply.
Overall, I found THE OTHER RIGHTS REVOLUTION to be extremely well-written, compelling in its narrative and an overall excellent contribution to the literature on the rise and influence on the conservative legal movement.

REFERENCES

Burke, Thomas. 2004. LAWYERS, LAWSUITS AND LEGAL RIGHTS: THE BATTLE OVER LITIGATION IN AMERICAN SOCIETY. University of California Press.

Clayton, Cornell. 1992. THE POLITICS OF JUSTICE: THE ATTORNEY GENERAL AND THE MAKING OF LEGAL POLICY. Routledge Press.

Epp, Charles. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Oxford University Press.

Fried, Charles. 1992. ORDER AND LAW: ARGUING THE REAGAN REVOLUTION. Touchstone Books.

Hollis-Brusky, Amanda. 2015. IDEAS WITH CONSEQUENCES: THE FEDERALIST SOCIETY AND THE CONSERVATIVE COUNTERREVOLUTION. Oxford University Press.

--. 2013. “It’s the Network: The Federalist Society as a Supplier of Intellectual Capital for the Supreme Court.” LAW, POLITICS AND SOCIETY. 61: 137-178.

--. 2011a. “Support Structures and Constitutional Change. Teles, Southworth and the Conservative Legal Movement.” LAW AND SOCIAL INQUIRY. 36(2): 551-74.

--. 2011b. “Helping Ideas Have Consequences: Political and Intellectual Investment in the Unitary Executive Theory, 1981-2000. DENVER UNIVERSITY LAW REVIEW, 89(1): 197-244.

Johnsen, Dawn. 2003. “Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change.” INDIANA LAW JOURNAL, 78 (1): 123.

Southworth, Ann. 2008. LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION. University of Chicago Press.

Staszak, Sarah. 2015. NO DAY IN COURT: ACCESS TO JUSTICE AND THE POLITICS OF JUDICIAL RETRENCHMENT. Oxford University Press.

Teles, Steven. 2008. THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW. Princeton University Press.

--2010. “Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment.” STUDIES IN AMERICAN POLITICAL DEVELOPMENT. 23(1): 61-83.



© Copyright 2017 by author, Amanda Hollis-Brusky.