The New Republic on “The Rehabilitationists”

August 30th, 2015

Brian Beutler has an article in The New Republic, titled “The Rehabilitationists.” The subheading aptly summarizes the thesis: “How a small band of determined legal academics set out to persuade the Supreme Court to undo the New Deal—and have almost won.” The article focuses primarily on my friend and colleague Randy Barnett, but also highlights other bases in the movement, including the Institute for Justice, the Volokh Conspiracy, and the Federalist Society. It is the last institution–or more precisely how its membership has evolved–that Beutler shines a light on.

The article opens with a flashback of the 2013 Lawyers Convention debate between Barnett and Wilkinson–with a quote from yours truly.

IN NOVEMBER 2013, a who’s who of America’s conservative legal establishment descended on the Mayflower Hotel in Washington, D.C., for an annual meeting of the Federalist Society, the most influential conservative legal organization in the country. Current presidential candidates Scott Walker and Ted Cruz each made appearances, ingratiating themselves with the influence peddlers in attendance. Supreme Court Justice Clarence Thomas was a featured speaker at the event’s black-tie-optional dinner.

One of the biggest stars of the conference, however, was neither a Senate-confirmed official nor an elected politician, but a libertarian law professor at Georgetown named Randy Barnett. This wasn’t Barnett’s first turn as a Federalist Society eminence, but his reception that year was especially rapturous.

“The younger people, the people in law school, they seem to be gravitating toward people like Randy,” said attendee Josh Blackman, an associate law professor at the South Texas College of Law and a close friend of Barnett’s. “When he gets off the stage he’s mobbed. … There’s a crowd of people five or six feet deep surrounding him.”

Barnett had been invited to participate in a lunchtime debate against J. Harvie Wilkinson, a Reagan-appointed judge serving on the Fourth Circuit Court of Appeals, on the topic of whether courts are too deferential to legislatures. The event was sold out.

Thinking back on that day recently, Barnett marveled at his emergence as a celebrity. “One of the leaders of the Federalist Society—one of the senior staff—said clearly I had the room,” Barnett told me. “It wasn’t that I beat J. Harvie Wilkinson in a debate—who knows?—it’s just that the room was with me. The room would not have been with me ten years ago.”

Randy is absolutely right. As Ilya and I tweeted at the time, Wilkinson was booed when he praised the Chief’s vote in NFIB:

What has been the cause of this shift? Beutler writes:

Back then, Barnett was one of a handful of academics on the fringes of conservative legal thought. Today, their views are taking hold within the mainstream of our politics. Barnett and his compatriots represent the vanguard of a lasting shift toward greater libertarian influence over our law schools and, increasingly, throughout our legal system. They’re building networks for students and young lawyers and laying the foundation for a more free-market cast of federal judges in the next presidential administration. Their goal is to fundamentally reshape the courts in ways that will have profound effects on society.

Beutler focuses on the IJ summer workshop.

With five offices around the country, a legal clinic training students at the University of Chicago Law School, and a staff of nearly 100, the Institute for Justice has become a proving ground for aspiring, ideologically committed lawyers. Every year, the group sends lawyers to law schools around the country to give presentations on public-interest law and recruit students into its ranks. “It’s certainly done with the intent to make sure that libertarian-minded law students know who we are and what we have to offer,” Clark Neily, a senior attorney at the Institute for Justice, said of the group’s outreach. Each summer, a couple dozen clerks join the group in its Beltway headquarters and state offices. From there, these young lawyers typically move on to more traditional clerkships at law firms and federal courts—one former Institute for Justice clerk worked for Chief Justice Roberts from 2008 to 2009—and when the Institute hires new staff attorneys, it often culls from the ranks of these same pupils.
“Ten to 15 years ago, conservatives who were in positions of influence—educating young lawyers, or in a position to hire them to politically desirable positions—were unified by what you might call Borkian restraint, or knee-jerk deference,” Neily said. “What has really changed in the last four or five years is a real skepticism, particularly but not exclusively among young law students, toward this kind of acquiescence to whatever government does.”

I attended this conference in the summer of 2007, after my first year of law school, and it greatly impacted my thinking about the law. I paid homage to this conference in my article, The Burden of Judging that reviewed books by an unholy trinity of libertarian scholars–Barnett, Neily, and Epstein:

If I may indulge you with a funny, but relevant, anecdote. In July of 2007 after my first year of law school, I attended the IJ Summer workshop. During the intensive program, I participated in a moot court exercise. Clark Neily was sitting as the judge. The case involved a city trying to use the power of eminent domain to seize land to build a football stadium that would be privately owned. Judge Neily pressed me on Kelo and asked me to identify a limiting principle that would control, and explain when the government could and could not take private property for private devel- opment. Flummoxed by constitutional law, I turned to another first-year required class at George Mason University School of Law, Law & Economics. This was clearly a transfer from homeowners to the special-interest football lobby, I thought. To an- swer his question, I said something to the effect of, “courts should scrutinize against rent-seeking.” Neily, no doubt much to his chagrin, replied that “public choice” was not a principle embodied in the Constitution. That thought stayed with me through- out all of law school as a scholar, and ultimately inspired this article.

I think the article accurately captured the shifting tides in the Federalist Society crowd towards the perspective of judicial engagement. It is my distinct sense that people of my generation are much closer to the Volokh-conspiracy wing than the Bork wing.