Writing in the spring issue of the Manhattan Institute's City Journal, Gerald Russello, author of The Postmodern Imagination of Russell Kirk, offers a provocative review of Steven M. Teles' new The Rise of the Conservative Legal Movement in America. In Russello's view, despite a number of clear victories—most prominently the Supreme Court appointments of Justices Scalia, Thomas, and Alito—conservative legal activists have largely failed in their endeavors. Here's why:
Perhaps the very strategy that enabled such conservative successes has also limited it: conservative groups adopted some of the premises of judicial liberalism, pushing for activist federal courts and the use of rights language to achieve their goals. Conservative lawyers, like their liberal New Deal forbears, flocked to Washington to take posts in presidential administrations, too often leaving state legal systems at the mercy of liberals (like New York's Eliot Spitzer). Instead of developing a truly conservative legal philosophy based on decentralization and the rights of local communities, the conservative legal movement often became merely a moderate opposition to the trend of centralized government and heavy reliance on the courts to achieve political goals.
One of my problems with this is that Russello's "truly conservative legal philosophy" lets state and local governments off the hook for various assaults on individual rights. I'd also distinguish more carefully between the various groups under discussion. For instance, elsewhere in the article Russello describes the great Institute for Justice (IJ) as conservative, when in fact they're libertarian, probably the single best example of what a truly libertarian legal philosophy might entail.
But Russello is undoubtedly correct that the rights-based IJ approach has taken a beating in recent years, most notably in the double-whammy of 2005, when the Supreme Court came out in favor of eminent domain abuse (Kelo v. City of New London) and against medical marijuana (Gonzales v. Raich). Should we abandon hope and retreat to the states, or stick with IJ and keep fighting the good fight?