by Jeremy Leaming
The dominance of a conservative legal orthodoxy might not be as solid as portrayed by several panelists at a recent Brookings Institution event about the “Conservative Legal Movement and the Future of Liberal Jurisprudence.”
Pamela S. Karlan, a distinguished law professor at Stanford Law School, explained why many perceive the conservative legal movement as dominating the narrative of the Constitution, while William E. Forbath, a distinguished law professor and professor of history at the University of Texas, focused on sharpening a liberal response to the conservatives’ narrative of the Constitution primarily meant to protect individual interests, such as private property. Forbath also examined the Constitution’s promise of economic security and equality.
Karlan (pictured), an ACS Board member, took exception with the overall tilt of the Brookings event that conservative legal activists have outmaneuvered liberals in advancing legal theories. Karlan, however, also leveled criticism of liberals who are cowed into silence or into dubbing themselves progressives.
But first Karlan noted the circumstances, with which conservatives have seized upon to advance their legal precepts.
“Today it is tempting to tell a story about the rise of the conservative legal movement as the inevitable consequence of a combination of strong ideas pressed by charismatic public figures, backed by tremendous resources,” Karlan said. “To be sure, conservatives have very skillfully played the hand that they held. But contingency has played a major role too.
“If you go to the Brookings’ website to look for its description of the conference today, you’ll see the description that says ‘the conservative legal movement has shown remarkable success at defining the terms of the debate over jurisprudence, while various visions of liberal theories of law that confront conservative orthodoxy have struggled to gain currency in the political sphere. Conservative legal theorists have coalesced around a relatively compact and politically effective set of ideas while their liberal critics have offered a diverse series of responses.”
Continuing, Karlan said, “Now if some other public policy organization were to have held a conference in say 1968, it could have taken the same paragraph, swapped the words ‘conservative’ and ‘liberal’ and held a parallel discussion to the one were going to be holding today.”
Conservatives Karlan maintained, “Have been as lucky as they’ve been smart.” A few tweaks to history, she said, and the landscape would likely look really different.