Conservative Litigation Strategies and Groups in US Judicial Politics

by

Ann Southworth

• LAST REVIEWED: 02 May 2019
• LAST MODIFIED: 11 January 2017
• DOI: 10.1093/obo/9780199756223-0200

Introduction

There is a massive literature on litigation strategies and groups associated with causes of the political left in the United States, but much less scholarly attention has focused on the litigation activity of groups on the political right. This article summarizes the literature on the litigation strategies and groups associated with various conservative causes, focusing primarily on the period since the late 1960s. The definition of conservatism is contested, but this article defines the term to include several strands of an uneasy alliance that has coalesced behind the Republican Party, including social conservatives, libertarians, and business interests. In addition to summarizing scholarship on the litigation strategies and groups associated with conservative causes, this article also considers scholarship on the policy entrepreneurs who founded conservative litigation groups and the patrons and networks that have supported them. It does not attempt to summarize the vast literature on the conservative movement or the conservative turn in American politics and the Supreme Court.

General Overviews

A number of works have been published that focus on conservative legal groups and their litigation campaigns. Epstein 1985 provides an excellent historical overview of the litigation activities by three types of conservative interest groups from 1900 through the early 1980s. O’Connor and Epstein 1983 documents the rise of conservative litigating organizations active in the courts in the Burger Court era. Edwards 2004 is a collection of essays by leading lawyers of the conservative movement about their missions and strategies. Southworth 2005 examines how conservative and libertarian lawyers created a field of public interest organizations in the image of public interest organizations of the political left. Nielsen and Albiston 2005 documents the influx of conservative public interest law organizations into the field of public interest law. Teles 2008 is an account of the rise of the conservative legal movement since the 1970s. Southworth 2008 explores tension between the different types of conservative legal groups and their lawyers and strategies for promoting cooperation among them.

• Edwards, Lee, ed. Bringing Justice to the People: The Story of the Freedom-Based Public Interest Law Movement. Washington, DC: Heritage, 2004.

  Essays by leading players in the “freedom-based public interest law movement” describing their litigation goals and victories on issues ranging from property rights and school prayer to affirmative action policy and religious liberty.

• Epstein, Lee. Conservatives in Court. Knoxville: University of Tennessee Press, 1985.

  This foundational work examines the use of the courts by three types of conservative organizations: economic groups, social groups, and public interest law firms. Reviews the history of selected conservative groups that used the courts in the first half of the 20th century and more recent activities of conservative litigation groups in the 1970s and 1980s. It also offers generalizations about efficacy of conservative interest group involvement in the judicial process.

• Nielsen, Laura Beth, and Catherine R. Albiston. “The Organization of Public Interest Practice: 1975–2004.” North Carolina Law Review 84 (2005): 1591–1621.

  This study of public interest law organizations and lawyers who work with them notes major transformations in the organization of public interest practice since 1970, including the emergence of a subset of groups that pursue agendas associated with libertarian and conservative goals.

• O’Connor, Karen, and Lee Epstein. “The Rise of Conservative Interest Group Litigation.” Journal of Politics 45 (1983): 479–489.

  DOI: 10.2307/2130136

  Explores conservative groups’ strategic use of litigation since the mid-1970s but emphasizes the limited form of their participation—the filing of amicus curiae briefs.

• Southworth, Ann. “Conservative Lawyers and the Contest Over the Meaning of ‘Public Interest Law.’” U.C.L.A. Law Review 52 (2005): 1223–1277.

  Examines how conservatives adapted the model and rhetoric of public interest law practice to serve different political ends, and how, in the process, they modified the conventions of this form of advocacy.

• Southworth, Ann. Lawyers of the Right: Professionalizing the Conservative Coalition. Chicago: University of Chicago Press, 2008.

  DOI: 10.7208/chicago/9780226768366.001.0001

  Draws on interviews with seventy-two lawyers for conservative and libertarian groups to explore what lawyers for conservative groups hope to achieve through litigation, differences in the characteristics, values, and professional identities of lawyers for different strands of the conservative coalition, the role of think tanks in developing litigation agendas, and strategies for forging cooperation through mediator organizations such as the Federalist Society and Heritage Foundation.

• Teles, Steven. The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton, NJ: Princeton University Press, 2008.

  A study of how conservatives, beginning in the 1970s, mobilized to challenge what they perceived as prevailing liberal legal assumptions, in part by building institutions, including conservative litigating groups, to generate and defend their ideas.