Conservatives and the courts: Judicial activism on the right?

By Terence Pell

Philanthropy, May 1, 1998

In recent years, conservatives increasingly have resorted to the courts in an effort to roll back objectionable features of the welfare state. Backed by conservative foundations and donors, a handful of public interest law firms have mounted high-profile legal suits against affirmative action, against state restrictions on school vouchers, and against government limitations on religion and property rights. Whereas once the Ford and Rockefeller Foundations used the courts to push through broad programs of social reform, now it is conservative activists who are mounting high-profile cases to further policy objectives. that could not be secured readily through more representative branches of government.

Yet many conservative funders are ambivalent about this use of the courts. While they welcome the sometimes favorable results, they are troubled by the resemblance to the sort of judicial activism long favored by liberals.

Conservative donors need not be so skeptical of conservative public interest law, since, properly understood, conservative litigation is fundamentally different from the sort of judicial activism long favored by liberal interest groups. Moreover, the judicial branch has a unique role in protecting individual liberty and enforcing principled limits on government activity, making it a natural ally in conservative efforts to relimit government. Conservative funders not only shouldn’t be embarrassed about appeals to judicial authority, they should make copious use of the courts in their efforts to rein in an increasingly out of control bureaucratic state.

Learning from the Left

Conservatives can also learn important lessons from the model of public interest litigation developed and used so successfully by the Left for many years. Lesson number one is that the courts have a powerful hold on the American imagination, and that a victory before a single court can have a lasting and profound effect on the shape and momentum of public debate.

Sometimes, the effects on public opinion far outweigh the ultimate legal significance of a particular court decision. If harnessed to a principled view of the courts, conservative public interest litigation can be a powerful tool to reintroduce notions of personal autonomy and accountability in American culture.

To succeed, conservative litigators (and the benefactors who support them) must articulate a principled rationale for the vigorous use of the courts that is consistent with the idea of judicial restraint. And they must be scrupulous about conforming their litigation to that rationale. Otherwise, conservative use of the courts will quickly become (and will be perceived to be) both reckless and opportunistic.

Conservatives can make a principled case for use of the judiciary in almost any case that involves a serious defense of individual rights against intrusive or overbearing governmental activity-a use utterly consistent with the limited role of the judiciary in our system of government. Such cases do not ask the courts to undertake programs of social reform. Nor do they require un-elected judges to manage other institutions of government such as school boards, prison systems, and other miscellaneous executive branch agencies.

If properly handled, such cases appropriately leave to executive and legislative branches the primary responsibility for devising and implementing corrective policies. This type of case asks the courts only to set the permissible limits of governmental activity; it does not require the courts to tell other branches of government how to exercise their power within those limits. No conservative public interest litigator is going to seek to keep large metropolitan school districts in virtual receivership for more than 20 years, supervising details as minuscule as how many basketballs administrators can purchase and for which schools.

Highly visible affirmative action lawsuits filed in Texas, Washington, and Michigan illustrate an effective use of the courts by conservatives and provide a template against which to measure conservative public interest litigation generally. The salient feature of these lawsuits is their unremitting focus on the heavy-handed and entirely bureaucratic use of race by public institutions. Conservatives did not use these cases to extend the welfare state into new areas of American life, but to eliminate a clearly illegal extension of existing bureaucratic structure over the lives of ordinary Americans.

The courts were an especially effective forum in which to challenge racial preferences. Use of the courts helped emphasize the principled nature of the conservative objections to affirmative action. This was critical given the historically controversial nature of conservative positions on race.

Conservatives had to make clear that their challenge to racial preferences was not simply part of an ongoing effort by “angry white males” to get back for themselves a bigger piece of the government pie. Framing the question as one of constitutional authority helped conservatives immeasurably in the ensuing debate.

The unique mission of the judiciary tends itself especially well to challenges of government authority. The legislative and executive branches tend to see racial preferences largely as a device to keep peace between competing interest groups, and treat their evident illegality as of secondary importance. The representative branches tend, in other words, to focus on whose ox gets gored, not whether government has any business supervising ritual sacrifice in the first place.

Litigating to redress genuine grievances

There are other differences. First and perhaps most important, the affirmative action cases supported by conservative public interest law firms were built around the experiences of real individuals. Cheryl Hopwood, Katuria Smith, Jennifer Gratz, and Patrick Hamacher were not token plaintiffs recruited to support a rightwing ideological agenda. They were individuals who independently had concluded they had been discriminated against by university admissions officials. In each case, there was conclusive documentary evidence to support their claim.

Unlike the Left, which typically presses token clients into the service of its otherwise highly abstract political agenda, public interest litigation by conservatives generally should emphasize cases built around the stories of real, live clients. Doing so not only narrows the litigation and makes it more manageable, but it helps avoid the broad, social engineering characteristic of liberal public interest litigation.

A second important difference between conservative public interest litigation and its liberal counterpart concerns the sort of remedy sought.

Liberal public interest groups very often usethe courts as a way to force the implementation of broad schemes of social engineering. Beginning with justice Thurgood Marshall’s legitimate effort to dismantle the myriad institutional forms of Jim Crow discrimination, liberal interest groups have used litigation to promote one experiment in social engineering after another.

It was perhaps inevitable that such an ambitious and anti-democratic use of the courts eventually would collapse of its own weight, yet conservatives need not fear that right-leaning public interest litigation will suffer the same fate.

In nearly all cases, conservative litigation seeks to restrict bureaucratic control, not extend its reach. For instance, if current affirmative action litigation is successful, it will eliminate a particularly bureaucratic use of skin color from the college admissions process. It will not try to replace racial preferences with a new, court-ordered admission process designed to achieve a conservative vision of college admissions.

Thus, in the months following the Hopwood decision, which struck down racial preferences in the Texas college and university admissions, schools in Texas have been free to adopt a variety of race-blind admissions strategies.

Some schools have de-emphasized grades and test scores. Others, principally the state-run schools, have decided to accept automatically the top 10 percent of every Texas high school class.

These varied strategies reflect different institutional missions. Schools that try to emulate elite private institutions may continue to emphasize grades and standardized tests-and probably will enroll a dearth of minority applicants as a result, at least initially. Schools whose mission is to educate representative segments of the Texas population are moving quickly to implement admissions criteria that go beyond grades and test scores.

For their part, the Hopwood plaintiffs have refrained from imposing any single conception of the mission of higher education on Texas schools. They have never urged the court to create a new or better admissions system, or to order the schools to submit admissions programs for court review. In declining to impose a particular raceblind remedy on their adversaries, the Hopwood plaintiffs revealed an approach to the courts fundamentally opposed to that favored by the Left. In contrast to the usual litigation strategy employed by the Left, the conservative approach fosters individual and institutional autonomy.

If conservative public-interest litigators are careful to bring cases that reinforce rather than undermine the theory of limited government that they otherwise espouse, then there is much to recommend a vigorous use of the courts. Not only does carefully crafted, conservative public interest litigation further the idea of limited government, but it is a very effective way to focus public attention on a whole host of conservative policy proposals that flow from that idea.

Teaching by example.

To successfully challenge the intrusive role government now plays in American life, conservatives must move debate away from abstract slogans about limited government and toward concrete ways the modern welfare state harms ordinary

Americans. A well-crafted lawsuit is an extremely effective way to bring home the real costs of excessive bureaucratic control over everyday life.

Once again, the affirmative action cases are illustrative. Prior to the University of Michigan case, the debate about affirmative action was largely controlled by the White House, which wanted to emphasize President Clinton’s feel-good slogan to “mend” affirmative action and not “end” it.

So long as the debate was kept at the level of empty abstraction, it was difficult to make institutional reform a priority-a situation that greatly favored proponents of the status quo.

Once the Michigan case was filed however, the debate quickly and mercifully gravitated toward the concrete consequences of affirmative action for students like Jennifer Gratz and Patrick Hamacher, both of whom were denied admission to the University of Michigan, despite sterling academic records and long lists of extracurricular achievements. According to documents obtained from the UM admissions office by UM Professor Carl Cohen (and widely publicized as a consequence of the lawsuit), minority applicants with exactly the same credentials were almost certain to be admitted.

The startling role that race played in college admissions (and the clear effects of such policies on the life of ordinary high school students) suddenly gave conservatives a new and vital foothold in the debate.

Instead of trying to explain a¬†Utopian¬†theory of a “race blind” America, for once, conservatives could point to a particularly vexatious aspect of racial relations that could be fixed directly. By filing a lawsuit, conservative reformers moved the debate off of the level of abstract theories of race and instead provided a clear instance of the concrete harms caused by racial preferences.

So long as conservative public-interest litigators use the courts to reduce rather than increase the power of bureaucratic forces over American life, they will not be guilty of the sort of judicial activism long favored by their liberal counterparts. If conservative litigators, and the donors who support them, are willing to use the courts selectively in cases where genuine questions of individual rights are at stake, they can reinforce the conservative idea of a judiciary with a limited (though crucial) role in our system of government. Not only does such a use of the courts not conflict with conservative ideas of judicial restraint, such cases can help conservatives shape public debate around conservative rather than liberal principles.