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The Aberration of the Right

By: Jesse Merriam
February 10, 2017

n Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, recognized by the American Political Science Association as 2016’s best book on law and the courts, Amanda Hollis-Brusky claims that the Federalist Society has revolutionized American jurisprudence. In Right-Wing Critics of American Conservatism, another book that received significant media and scholarly attention, George Hawley offers a starkly different account of the conservative movement, contending that it has managed to conserve very little over the last 50 years.

The Federalist Society was born in the early 1980s, when three conservative law students came together to challenge the legal academy’s leftist orthodoxy. Thirty-five years later, the Federalist Society has nearly 50,000 members and plays an important role helping Republican administrations vet and appoint conservative judges. In documenting this development, Hollis-Brusky is certainly right that the Federalist Society has been enormously successful.

Hollis-Brusky fails to demonstrate, however, what has been conservative and revolutionary about this movement. Indeed, Hollis-Brusky cites few examples of the Federalist Society’s actual judicial victories—some of which do not support the idea that there has been resistance, let alone revolution. For example, Hollis-Brusky makes a big deal out of the Rehnquist Court, in 1995, striking down a federal law that regulated intrastate non-economic conduct, the first such ruling in nearly 60 years. But she overstates the decision’s magnitude: it largely accepted the Court’s expansive New Deal precedents. Finding that a fragment of the Commerce Clause remains in the Constitution is hardly revolutionary.

Moreover, although Republicans have controlled the Supreme Court for 45 years by virtue of appointing 12 of the last 16 Supreme Court Justices, Hollis-Brusky overlooks how only five of these 12 justices have ended up being consistently conservative (Rehnquist, Scalia, Thomas, Roberts, and Alito). And of the seven justices appointed by Republican presidents since the birth of the Federalist Society, only Justices Scalia and Thomas have been consistent originalists.

In the meantime, no Democratic appointee has even slightly repudiated living constitutionalism, or upheld limitations on federal power. In fact, over the last 50 years, exactly zero Democratic appointees have moved to the right during their tenure, while most Republican appointees have moved substantially to the left.

In sum, Ideas with Consequences repeats the mistake made by the handful of other books that have examined the legal conservative movement: assuming that the law has a natural leftward trajectory and thereby identifying all departures from or impediments to that path as conservative. Because these works see the Right as an aberration of the Left, rather than as an independent, legitimate viewpoint, they see counterrevolution wherever political actors are not actively agitating for more revolution.

By understanding the conservative movement according to its own first principles, George Hawley’s Right-Wing Critics of American Conservatism perceives the movement’s successes and failures more clearly. Though not focusing on law, he provides a powerful companion to Hollis-Brusky’s book.

Hawley, a University of Alabama political scientist, criticizes the conservative movement for growing more tolerant of the welfare state, political correctness, and immigration, while becoming less tolerant of internal dissent. This shortcoming was on full display during the 2016 election, with Donald Trump being condemned by conservative pundits for making claims that would have been considered within the conservative mainstream just 25 years ago.

To Hawley, such maneuvers are emblematic of a movement that no longer stands athwart history yelling, “Stop!” but is content to chase after the zeitgeist, asking it to please slow down. Framed in these terms, 21st-century conservatism is not so much the preservation of the accumulated wisdom of tradition, but a commitment to resist the Left and then, upon losing, ratify the concessions as truly conservative values.

While Ideas with Consequences considers the Left’s fate if the legal conservative movement strengthens, Right-Wing Critics strikes at the opposing end of the ideological spectrum, sounding a wake-up call for a movement that often times appears more eager to please its opponents than its core constituency. The 2016 election was a warning that missing the signal may turn voters away from conservatism’s commitment to a government of limited powers, individual rights, and the rule of law.