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May|June 2005
Oh, God By Scott Shapiro and Alison Mackeen
A Vast Right-Wing Conspiracy By Jonathan H. Adler
License to Wardrive By Brendan I. Koerner

A Vast Right-Wing Conspiracy

It's neither vast nor a conspiracy. Discuss.

By Jonathan H. Adler

THE INSTITUTE FOR JUSTICE HAS COME A LONG WAY in 14 years. Founded in 1991 with three attorneys and a modest budget, the libertarian law firm has become a force to reckon with in the public interest legal world. Its first big win came with its successful defense of public school vouchers before the United States Supreme Court in 2002. This year, Institute for Justice, or I.J., attorneys have argued two cases before the high court. In Kelo v. New London, the firm challenged the local use of eminent domain for economic development. In Swedenburg v. Kelly, it fought state laws that limit out-of-state wine sales. I.J. also filed "friend of the court" briefs in other cases.

I.J. is but one soldier in a growing army of right-leaning public interest legal foundations that have come to the fore of legal advocacy in recent years. Beginning in the 1970s, libertarians and religious conservatives began to create public interest legal groups that were modeled on successful liberal and progressive foundations like the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund Inc. What began with a few small groups has become an active and effective legal force—one that is increasingly earning notice, shaping law, and drawing criticism from opponents.

Bringing Justice to the People: The Story of the Freedom-Based Public Interest Law Movement, a recent book published by the conservative Heritage Foundation, chronicles the growth of groups like the Institute for Justice through profiles of groups and essays about issues written by leaders in the movement. As such, it offers a valuable inside view to the lawyers and the lawsuits that increasingly influence the nation's public law. Important as the topic is, the collection contains the sort of puffery you might expect from essays written by the individuals who are this book's subjects. Its deeper flaw is that it papers over real divisions among conservative and libertarian groups. There is no right-wing legal monolith, no cohesive, unified "freedom-based public interest law movement," as the book's title suggests. The groups collected under this moniker lack a single, overarching agenda. For every I.J. advancing libertarian notions about government power, there is a more traditional conservative group seeking to protect Judeo-Christian moral values and preserve or expand religion's place in the public square. Although such groups may see a common enemy in the liberal elites that they believe still dominate the nation's legal culture, the organizations have different goals, different funding sources, and different constituencies—and sometimes they even go toe-to-toe against one another.

If current trends continue and Republicans are able to put a conservative imprint on the nation's courts, the divisions among the groups profiled in Bringing Justice to the People may well grow. Conservative and libertarian legal organizations were first launched in the 1970s and '80s to fight what they saw as the excesses of the liberal welfare state. At the time, most such groups sought to challenge "judicial activism," to beat back the sprawl of government and regulations, and to restore the "original intent" of the Constitution. Since then, they have scored important legal victories challenging local affirmative action programs, threats to conservative speech on college campuses, and government restrictions on land use.

Yet with government in Republican hands, it is not surprising that some of these groups are now willing to focus their efforts on working with the government rather than against it. For example, some right-leaning legal groups threw their hats in with the Bush Administration, defending a broad interpretation of federal power to detain enemy combatants and fight the war on terror. Others have focused on defending school choice programs or public displays of religious symbols on government property. These and other issues, like the meaning of federalism and the extent to which the Bill of Rights protects individual autonomy, could provoke significant clashes on the right in coming decades.

AS WITH SO MUCH ON THE CONTEMPORARY RIGHT, the origins of the conservative and libertarian public interest legal movements can be traced back to Ronald Reagan. In the early 1970s, several liberal public interest groups challenged then-California governor Reagan's policies that reformed the state's welfare system and limited its welfare rolls. Despite success in reducing fraud and shrinking state expenditures while increasing grants to California's remaining welfare recipients, the reforms had no "public interest" defenders in court. Several one-time Reagan staffers, including Ronald Zumbrun, took it upon themselves to fill this gap, launching the Pacific Legal Foundation in 1973 to mount from the right legal challenges to government regulations in the areas of business and land use. By 1978, 10 other libertarian-leaning litigation outfits were in business nationwide. Since that time, the Landmark Legal Foundation has fought for school choice and other market-based "empowerment" strategies as alternatives to affirmative action, and the Mountain States Legal Foundation has challenged environmental restrictions on both federal and private land.

At the same time that these firms were emerging to challenge regulation, other right-leaning public interest firms were founded with very different goals. The Christian Legal Society launched the Center for Law and Religious Freedom in 1975 to ensure that religious organizations had equal access to schools and other public institutions. Other groups quickly followed, including the Rutherford Institute, which defends religious speech in schools (and which helped represent Paula Jones in her suit against Bill Clinton), and the American Center for Law and Justice, which styles itself as a religiously oriented anti-ACLU. The catalysts for this movement were, on the one hand, a series of court decisions on church and state issues that were perceived to threaten religious expression in the public square, and, on the other, the sense that the courts were failing to protect traditional religious values. Over the years, the groups' focus has expanded beyond the sphere of religion to include positions on home schooling and the war on terror. In each case, however, the groups believe that their positions counter the pervasive influence of modern liberalism on the nation and its legal institutions.

While most of the libertarian and economically oriented groups remain independent, there has been some consolidation among the more religiously oriented foundations. In response to concerns that there was insufficient funding to support ongoing litigation and a general lack of strategic coordination of litigation efforts, over two dozen religious leaders representing a wide array of traditionalist organizations banded together to create a central entity, the Alliance Defense Fund, with an annual budget of nearly $15 million and a network of several hundred attorneys. Nothing quite like the fund exists elsewhere within the conservative legal movement, let alone the public interest legal world more broadly.

When the first libertarian and conservative public interest outfits began to open their doors, they recognized that their models were their prominent adversaries on the left. Progressive legal organizations like the ACLU and the NAACP Legal Defense Fund had enjoyed considerable success in achieving policy changes by litigating traditional liberal causes of civil liberties and racial equality. Lawyers like Zumbrun and I.J. president Chip Mellor had different objectives, but they adopted many of the strategies that these earlier groups had perfected. The firms sought out cases that had sympathetic plaintiffs and the potential to set precedent and that were unlikely to be litigated unless these firms took the lead. The Center for Individual Rights modeled its challenges to affirmative action in higher education on the NAACP Legal Defense Fund's decades-long, successful campaign against state-sponsored school segregation, following their strategy of bringing a series of incremental cases opposing the use of race in admissions at state-sponsored universities. Structurally and strategically, right-leaning legal organizations look a lot like their counterparts on the left, but they seek to move the law in the opposite direction.

Even when they fail, these cases often attract publicity for their lawyers' cause. I.J. is particularly effective at using litigation to shine the spotlight on policies it is attacking, like monopolistic licensing laws or local governments' use of eminent domain to transfer property from individual homeowners to major developers. Some groups have brought suits that they acknowledge lacked a sound legal basis because the cases presented a chance to help mold public debate. A lawsuit is not just a legal battle. It is an opportunity, in the words of I.J. co-founder Clint Bolick, to "personalize, humanize, and dramatize." In the sympathetic hands of the contributors to Bringing Justice to the People, the clients of right-leaning public interest law firms are often portrayed as the little guys standing up to a behemoth of a government agency and its liberal supporters.

Compared with their more established predecessors, public interest firms on the right are still the little guys. Some religiously oriented conservative groups, like the American Center for Law and Justice, have budgets of close to $30 million, but they are the wealthiest, and even these organizations lack the firepower of the older, more established groups on the left (the national ACLU Foundation lists assets in excess of $100 million). The conservative John M. Olin Foundation and Bradley Foundation have made generous contributions to support right-wing legal advocacy, but their grants are each less than $1 million, while larger philanthropies often offer larger sums to left-leaning litigation groups. The Ford Foundation, for example, provided over $2 million to help launch the Mexican American Legal Defense and Educational Fund, which sees itself as the Mexican-American equivalent of the NAACP Legal Defense and Educational Fund, and which gave the ACLU a $9 million grant in a single year.

But right-leaning public interest law firms have been growing steadily, and they have benefited from the simultaneous growth of conservative foundations, think tanks, and legislative advocacy groups. Right-leaning firms have also gotten better at organization and outreach. Independently and through the influential Federalist Society for Law and Public Policy Studies, these groups host conferences and commission academic research, sponsor law school clinics and train young lawyers. They also draft legislation and arrange for pro bono representation. The overall level of activity and coordination is impressive and far more extensive now than even a decade ago.

THE HERITAGE COLLECTION CHARACTERIZES ALL OF THESE GROUPS—those fighting against government regulation and those fighting for greater recognition of traditional religious values in the public sphere—as part of a single "freedom-based public interest law movement." Lumping together the disparate groups obscures the differences among them. Some groups seek to defend a fairly traditional notion of freedom, like freedom from government intrusion into either the bedroom or the boardroom. Others seek to advance a different conception of freedom, like the right of religious communities to defend their values and principles by adopting laws that reflect their moral beliefs.

Libertarian legal foundations are more comfortable emphasizing the Declaration of Independence's embrace of natural rights. More traditional conservative groups reject the judicial protection of any rights not explicitly mentioned in the Constitution. For instance, some conservative groups argue that the Constitution does not protect a fundamental right to privacy because no such right is mentioned in the text. Many libertarians, on the other hand, note that the Bill of Rights was never intended to be an exhaustive list and that other sources, including constitutional history and the liberal philosophy that was dominant at the time of the nation's founding, suggest that other rights, particularly those related to property, merit protection from government action.

These differences have meant that in some cases right-leaning groups have lined up on opposing sides of big cases. In Lawrence v. Texas, which challenged Texas's prohibition on consensual homosexual sodomy, the Cato Institute and the Institute for Justice argued that such a prohibition exceeded the state's traditional police power and could not be squared with the principles of individual liberty and limited government embodied in the Declaration of Independence and the Constitution. But other litigation groups, such as the American Center for Law and Justice, defended Texas, arguing that the state's police power included the authority to protect "public morals" and to penalize behavior it deemed injurious to the community. Irrespective of your view of homosexuality, they argued, it is hard to believe that the founders cared about protecting a right to homosexual sodomy in 1787, and there was no textual basis to assert that they did care.

The divisions among the legal groups mirror the central division in postwar American conservatism. The conservative movement has long represented an uneasy alliance between libertarians, who are concerned about the size and scope of governmental power, and traditionalists who stress the importance of social order and Judeo-Christian moral values. In the 1960s, conservatives sought to develop a "fusion" of the two intellectual strands into a coherent whole—a fusion realized in the agendas of Barry Goldwater and Ronald Reagan and the united front that conservatives formed in opposition to Communism abroad and welfare-state liberalism at home. Yet the emergence of neoconservatism and the growing willingness of some on the right to utilize federal power for "conservative" ends strained the recent consensus. The Soviet collapse and the end of the cold war strained it to the breaking point. Without a common enemy, there was less pressure to make common cause. In a similar fashion, the increasing success of conservative and libertarian public interest legal groups has made their differences more apparent and imperative for the groups to defend.

Traditionalist conservatives and libertarians still form alliances on many issues, but it has become more difficult to view the groups as a coherent movement. The divisions are readily evident among the ranks of the "freedom-based" legal advocates. Libertarian and traditionalist legal groups may form alliances to challenge the expansion of federal regulation, to protect conservative and religious speech, or to advocate a return to the Constitution's "original understanding," but they disagree on much else. Even when advancing the same position in a given case, their viewpoints may be different. For example, groups affiliated with the Alliance Defense Fund and I.J. defended the Boy Scouts in Boy Scouts of America v. Dale, a suit that would have required the Boy Scouts to accept homosexual troop leaders, but the groups' motivations were different. The fund affiliates sought to defend religious groups from anti-discrimination laws that might force the groups to include individuals who do not endorse their moral vision. I.J.'s amicus brief, filed on behalf of Gays and Lesbians for Individual Liberty, echoed the endorsement of free association, but argued that this right was essential for the protection of gays and lesbians, as it has enabled gay and lesbian groups to form and exclude those with hostile points of view.

The intellectual ferment created by these organizations is significant, but that is not why they are front and center today. The Institute for Justice does not just fight for homeowners who have lost their property to government development. It also intervenes on the side of state and local governments to defend school choice programs against suits by teachers' unions and liberal interest groups. Similarly, many of the groups and lawyers backed by the Alliance Defense Fund seek to preserve local government policies against claims by the ACLU and other groups that government installations like plaques commemorating the Ten Commandments violate the First Amendment's prohibition against the establishment of religion. In these battles where the government is on their side, public interest litigators for right-leaning organizations are hardly standing alone with a slingshot. While not yet Goliaths, they command our attention because they are in a powerful position to help redefine the public interest.

Jonathan H. Adler is associate professor of law and associate director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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