Beachhead for Conservatism

December 27, 1999 − by CIR − in Articles − Comments Off on Beachhead for Conservatism

By Staff Writer

National Law Journal, December 27, 1999

A decade ago, Michael Greve, who is not a lawyer, and Michael McDonald, who is, formed the not-for-profit Center for Individual Rights. They envisioned it as a conservative version of the American Civil Liberties Union or the NAACP. Their plan: find aggrieved individuals whose disputes were suited to CIR’s purpose of furthering certain libertarian and conservative causes — then seek talented and like-minded private-sector lawyers to handle the cases pro bono, from trial to, with luck, the U.S. Supreme Court. CIR’s suits would set precedent, and the group, if everything clicked, would drive development of the law of the land.

It was a plan they had reason to think would work. The Reagan administration had just ended. The federal bench was teeming with judges generally more open than their predecessors to considering conservative legal arguments. A wealth of experienced conservative lawyers had just left the federal government for the private bar. Nor have things changed greatly for CIR under the Clinton administration. In large parts of the country, the general climate of opinion is still conservative, anti-affirmative action and anti-big government.

Over the years, CIR’s plan has worked well, and 1999 was such a banner year for the group that it merited a nod as runner-up for The National Law Journal’s 1999 Lawyer of the Year. Several conservative groups are fighting similar battles — the Institute for Justice and the Washington Legal Foundation, among others — but CIR has been especially effective, carefully selecting both its battles and the circuits they fight them in, with an eye to victory.

Slowly but surely

In 1995, CIR won a 5-4 Supreme Court victory in Rosenberger v. University of Virginia, 115 S. Ct. 2510, in which the majority declared that a university violated students’ free speech rights by excluding their religious magazine from the grants that were available to other campus groups.

A year later, it scored again with a landmark victory before the U.S. Court of Appeals for the 5th Circuit in Hopwood v. Texas, 78 F.3d 932. A panel voted 2-1 that the goal of student diversity does not render constitutional the racial preferences inherent in the admissions policies of The University of Texas School of Law. After the Supreme Court denied cert, CIR filed similar suits against the college and law school of the University of Michigan and the University of Washington School of Law. Both cases have been delayed by intervenors, but both are likely to go to trial in 2000 and then to be appealed — giving CIR the chance of seeing its vision of color-blindness in higher education become binding precedent in another two of the nation’s federal appellate circuits.

A year after Hopwood, CIR won a second significant Supreme Court case, this time involving congressional redistricting. In Reno v. Bossier Parish School Board, 117 S. Ct. 1491, the justices voted 7-2 to limit the ability of the Justice Department to deny its approval of new legislative maps that do not reduce the number of minority-majority districts.

The right direction

In the past 18 months, CIR has expanded significantly — both its staff and its reach. The one-time two-person operation now has an in-house legal staff of six, and the group is busily propounding its legal philosophy throughout the nation in a score of cases that involve issues as diverse as racial preferences, sexual harassment, free speech, gender equity among university sports teams and Federal Communications Commission limits on micro-broadcasters who run low-power FM radio stations.

And federalism. CIR has two cases before the Supreme Court in the 1999-2000 term. One of the suits, Reno v. Bossier Parish School Board, No. 98-405, once again involves redistricting. The other, to be argued on Jan. 11 by CIR General Counsel Michael E. Rosman, poses perhaps the most profound question raised in a series of high-stakes cases in which the high court has sought to recalibrate the balance of power between the federal government and the states. In U.S. v. Morrison, CIR is representing college football players accused of sexually assaulting a female University of Virginia student. The woman sued her alleged attackers under the Violence Against Women’s Act (VAWA), which creates a federal civil remedy for victims of violence motivated by gender-based animosity. The question is whether the Constitution’s commerce clause is broad enough to give Congress the power to enact such a statute.

“This is the justices’ first revisitation of the issues in [U.S. v. Lopez],” says Mr. Greve, CIR’s president, referring to the landmark 1995 decision that, for the first time in 60 years, struck a federal statute as exceeding congressional authority under the commerce clause. “We will now find out if the court was serious in Lopez, or whether Lopez was just an empty gesture.”

Morrison is pivotal in part because it will answer a crucial question Lopez left open: Would the court defer in the future to a law containing the sort of findings regarding effect on interstate commerce that were lacking in the Lopez statute (which made it a federal crime to possess a gun near a school) — but which VAWA contains in spades? Or does the court intend to conduct its own review of Congress’ economic findings and to strike any statute for which it feels the asserted economic impact is too slight or attenuated to pass commerce clause muster?

If the court selects the latter course, we should all be prepared to see CIR duplicate its fight against racial preferences in a continuing effort to press its agenda to rein in the federal behemoth — jurisdiction by jurisdiction, one suit at a time.

“I entirely agree with [Justice Clarence Thomas] that there’s no coherent intellectual justification for the post-New Deal federalism jurisprudence,” says Mr. Greve, who recently authored a book titled Real Federalism.

“At the same time, I’m an incrementalist about this,” Mr. Greve continued. “We have built a whole government around the demise of federalism. There’s a whole lot that will have to be rethought. So certainly the Supreme Court is well-advised to embark on this in an incremental fashion. But there’s nothing wrong with incrementalism so long as you keep going in the right direction,” he says.

Constitutional norms

Mr. Greve emigrated to America from Germany in 1981 and earned a Ph.D. in government from Cornell University in 1985. Although not a lawyer, he befriended one, Michael P. McDonald, while they were both working at conservative legal foundations. Then, in 1989, they teamed up to found CIR.

Mr. McDonald, a lackluster dresser who speaks in a nasal monotone, acts as CIR’s managing partner — now that there is a staff to manage. Mr. Greve — tall, trim, elegant and a dynamic speaker — is the group’s public face, giving upward of 30 speeches a year, handling fund-raising and writing the group’s punchy, often sarcastic, even snide newsletter. (You can just imagine how much pleasure CIR is getting from its current representation of four black students who are charging the historically black Alabama State University with discrimination for attempting to diversify its student body by creating a scholarship open only to whites. Tompkins v. Alabama State University, No. 97-1482.)

CIR’s fiscal year 2000 budget is a frugal $ 1.87 million, with two-thirds coming from foundations and the rest from various individuals. The group does no direct-mail fund-raising. “This will sound impossibly high-minded, but we have a sort of brainy, very principled approach to these issues, and my fear has always been that the fund-raising letters would be hopelessly overwritten and just short of race-baiting,” Mr. Greve says.

Still, the group intends to add roughly one lawyer to its legal staff in each of the next five years, allowing it to continue picking cases selectively — but on a growing number of subjects.

“I want to constantly look for new areas where it’s possible to re-establish and rebuild constitutional norms,” Mr. Greve says.



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