All Hail Ed Meese!

For the symposium on Neal Devins in addition to Lawrence Baum's novel book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019).

Devins in addition to Baum's The Company They Keep is a fine volume that silent manages to bury the lede. In monastic tell non to brand the same mistake, I volition nation the subject of this review inwards the outset paragraph. What Devins in addition to Baum truly show—in spite of themselves—is how social movements alter the Constitution. Moreover, the hero of the volume is Ronald Reagan's minute Attorney General, Edwin Meese, who does non fifty-fifty brand an appearance until Chapter Three. Now that's burying the lede!

In ane honor The Company They Keep is an extended application of the key declaration inwards Baum's 2006 book, Judges in addition to Their Audiences, which is ane of the most important—and likewise ane of the most neglected—recent contributions to the literature on judicial decisionmaking.  In Judges in addition to Their Audiences, Baum argued that judges are influenced past times their "audiences," that is, the people earlier whom they perform, which means, inwards most cases, family, friends, social networks, in addition to professional person colleagues.

If nosotros shift our focus to the US of America Supreme Court, every bit Devins in addition to Baum practise inwards this book, nosotros would ask: who is the most of import audience for US of America Supreme Court Justices? The answer is political in addition to legal elites, especially prominent members of the legal profession, members of the Supreme Court Bar, in addition to parts of the legal professoriate. That is to say, the most of import audience for Supreme Court Justices is other elite legal professionals in addition to legal intellectuals.

If that is so, then, Devins in addition to Baum argue, theories of judicial deportment that debate that judges respond to line per unit of measurement area from the other branches or from populace watch are probable to Pb us astray. Justices, who surrender large sums of time to come income inwards the shout out for for ability in addition to status, desire inwards a higher house all to endure held inwards corking esteem—and they desire to endure held inwards esteem past times swain members of the elite groups from which they are selected. Hence the championship of Baum in addition to Devins' 2010 article, Why the Supreme Court Cares About Elites, Not the American People.

The adjacent measurement inwards the declaration is to banking concern complaint that elite watch is non static, but changes over time.  For example, elites believed inwards scientific racism during the Gilded Age, but past times the 1940s they had move relatively anti-racist. Elite watch tin likewise endure organized inwards many dissimilar ways. Elites tin converge on a broad make of issues, they tin converge on exclusively some issues piece disagreeing on others, or, perchance most interestingly, elite watch tin move bipolar, strongly divided into 2 camps.

This terminal phenomenon is essentially what happened during the Reagan regime that begins inwards 1980. The conservative motion believed that it was existence unfairly close out of cultural in addition to legal ability past times a liberal hegemony. As a result, motion conservatives created their ain counter-institutions, including conservative media similar Fox News (begun inwards 1996), conservative think tanks similar the Heritage Foundation (founded inwards 1973), in addition to conservative elite networks similar the Federalist Society (begun inwards 1982).  These counter-institutions produced in addition to nurtured a laid of conservative elites who became the novel reference grouping for Republican appointed judges in addition to Justices. The resultant was a abrupt bi-polar distribution of elite opinion, with liberal Justices paying attending to (what used to endure called) the “mainstream” of center-liberal elite opinion, in addition to conservative judges in addition to Justices paying attending to their cohorts inwards the globe of conservative elite opinion.

One of the ironies of conservative rhetoric during the Reagan era was the repeated assertion that liberal judges are elitists—that is, that they are influenced past times liberal elites. Well, that may endure so, but conservative judges were no less influenced past times elites—just a dissimilar laid of elites!

How social movements influence elites

All of which brings us to the book’s buried lede.  Devins in addition to Baum watch their primary theoretical adversaries every bit political scientists. They disagree with those political scientists who claim that the Justices human activity to satisfy their political preferences, that they human activity strategically to make their political goals, or that they respond to pushes in addition to shoves from the political branches or from populace opinion.

All good in addition to good. But in that location is an elephant inwards the room—or rather, a meaning legal in addition to political literature—that they practise non pass much fourth dimension addressing. This is the theory that, over long periods of time, the federal judiciary in addition to the Justices respond to social in addition to political mobilizations, in addition to especially inwards the modern era.

I say that this is the elephant inwards the room because the phenomenon of social motion activism is literally everywhere inwards the book, but it is rarely mentioned explicitly. The words "social movement" seem at exclusively 3 points inwards the book's text. But when Devins in addition to Baum utter almost the ascension of in addition to the effects of the conservative motion inwards chapters 3 in addition to four of the book, they are talking almost the most successful social motion of our time. Note the irony: The terminal one-half of the volume is almost the effects of a especially powerful social movement, in addition to yet social movements are nowhere to endure seen inwards the theoretical model developed inwards the outset half!

Why is so piffling attending paid to social motion theories of constitutional alter inwards this book? The most probable ground is that Devins in addition to Baum assume that theories that focus on social movements are only a special instance of theories that claim that the Court is shaped past times full general pop opinion. The thought is that social movements to a greater extent than ofttimes than non operate past times changing populace opinion, which, inwards turn, shapes the views of the Justices. Because Devins in addition to Baum debate that populace watch is non a meaning motivator of judicial opinions, they don't receive got to say much almost social movements. As they seat it, "we disagree with legal scholars in addition to commentators who debate that the Court has largely followed broader cultural trends, related social movements, in addition to populace opinion. Rather, nosotros debate that the Justices are to a greater extent than responsive to relevant segments of the social in addition to political elite than to the populace every bit a whole." (p. 9).

But what if that is non the best way to sympathize how social movements truly influence the judiciary?

In fact, in that location are at to the lowest degree 2 dissimilar mechanisms for social motion success. The outset is to target full general populace opinion, inwards the hopes that this volition eventually influence the views of the Justices. The minute is to endeavor to alter the watch of the elites whose esteem the Justices seek in addition to honor. If Devins in addition to Baum are correct, social movements may larn to a greater extent than bang for the buck past times changing the minds of well-educated elites, in addition to especially well-educated *legal* elites, which is the peer grouping from which most Justices are selected.  In add-on to rounding upward a broad base of operations of pop support, social movements may endure good advised to endeavor to alter educated elite opinion—reasoning, non altogether incorrectly, that well-educated elites may endure to a greater extent than opened upward to for certain kinds of arguments in addition to hence easier to persuade.

And jurist what: that's how a lot of successful social motion activism works! For example, the Warren Court's covert of to a greater extent than liberal views almost race, obscenity, liberty of speech, in addition to sexual privacy in all probability owed every bit much to the influence of reform movements on elite populace watch every bit they did to changes inwards populace watch generally. When Justice Scalia complained almost the role of elite values inwards the Court's gay rights cases, that was because he assumed that gay rights advocates had made greater progress with educated elites—and especially with legal elites—than with the corking majority of the public.

It is of import to sympathize that social movements are complicated configurations with many dissimilar parts.  Social movements to a greater extent than ofttimes than non operate from the bottom up, in addition to endeavor to persuade every bit many people every bit possible. That is how nosotros unremarkably think of social movements. But social movements may likewise receive got elite elements, or they may receive got of import allies inwards elite circles, in addition to especially legal elite circles.  These latter elements of social motion activism may seek influence from the pinnacle downward every bit good every bit from the bottom up. And the to a greater extent than powerful a social motion becomes, the to a greater extent than it tin rely on both strategies.

The conservative movement, for example, does non start out every bit an elite movement. But it takes over a major political political party inwards the 1980s, in addition to eventually encompasses many elite elements in addition to elite policy networks, including the Federalist Society.  It likewise begins to receive got a major presence inwards majority media after the repeal of the Fairness Doctrine, leading outset to utter radio, in addition to then to Fox News, in addition to and then to a substantial number of conservative websites.  At this betoken inwards history, the conservative motion is composed of many powerful elite institutions, organizations, in addition to sources of funding, inwards add-on to the grass roots elements from which it originally sprung.

It is of import to recognize that neither the Federalist Society nor Fox News *are* the conservative movement. Rather they are an elite policy network in addition to a majority media organisation that are *part of* or *allied with* the conservative movement. As the 2 grow inwards ability in addition to influence, they assist the larger motion they are allied with. And, to furnish to Devins in addition to Baum’s argument, each is an of import vehicle for influencing conservative elite opinion, in addition to thus, the views of conservative judges in addition to Justices. 

Successful social motion campaigns promise to touching a broad swath of society. But if Devins in addition to Baum are correct, it's *also* of import than they—or for certain parts of them, at least—aim at the most well-educated in addition to elite members of society. It's exclusively natural that they would practise so. Most social movements these days employ in addition to attract a lot of lawyers, in addition to they may fifty-fifty encourage legal scholarship almost their causes. So in that location are probable to endure multiple connections betwixt social motion activism in addition to elite legal consciousness.

Thus nosotros may non receive got to withdraw betwixt the watch that sustained social mobilizations touching the Justices' decisions in addition to the watch that elite watch affects the Justices' decisions. In many cases, these may endure the *same* explanation, if nosotros recall to inquire the farther enquiry of how elite watch is formed in addition to how it changes over time.

How social movements tin assist foster elite networks

But wait, there's more.  The connectedness betwixt social motion activism in addition to elite watch likewise explains some other of import characteristic of the book's argument, in addition to hither nosotros come upward to the role of Edwin Meese.

Recall the declaration so far. If social movements desire to alter the beliefs (and decisions) of the Justices, in that location are basically 2 ways to practise that. The outset way is to alter the Justices through the appointments process. This is what Sandy Levinson in addition to I, along with Howard Gillman, telephone vociferation upward the strategy of partisan entrenchment.  In this honor the conservative motion has been really successful, in addition to especially so inwards the Trump Administration.

The minute way is to alter the minds of the Justices, in addition to according to the declaration I've only made, the most efficient way to practise that is to alter the minds of the audience whose esteem the Justices attention most about, which is to say, the minds of the elite peer groups from whom the Justices are selected.

But how practise you lot alter the minds of these elites? Once ane time to a greater extent than in that location are 2 ways to practise it. We've already described the outset way: sustained social in addition to political mobilizations that influence elite opinion. Once you lot larn elite watch on your side, the Justices connected to those elite networks volition (eventually) follow.

But there's likewise a minute way to alter elite opinion: Create a novel elite civilization in addition to *grow your ain elites,* in addition to operate to brand for certain that judges in addition to Justices are picked from that group.

That is essentially what the conservative motion did. As Devins in addition to Baum report, President Reagan (and earlier him, Presidents Nixon in addition to Ford) found it hard to discovery qualified conservatives to fill upward judicial positions. The resultant was that they appointed a mixture of many dissimilar kinds of Republicans, several of whom turned out non to endure reliable conservatives every bit fourth dimension went on.

But ane time Reagan's outset Attorney General, William French Smith, was replaced past times his minute Attorney General, Edwin Meese, the tide began to turn. Meese laid out to usage his seat to practise a cadre of conservative legal intellectuals inwards the Reagan Justice Department. He reached out to police students inwards the newly-formed Federalist Society. Along with other older conservative intellectuals similar Antonin Scalia, he worked to practise a legal counter-establishment that would grow over time, in addition to would move an indispensable network for locating immature conservative talent in addition to placing that talent inwards key positions.

As Steve Teles explains, this counter-establishment was aided past times strategic additions of resources in addition to back upward past times diverse conservative funders. And every bit Amanda Hollis-Brusky has explained inwards her volume Ideas with Consequences, the Federalist Society, next Meese's in addition to Robert Bork's lead, eventually settled on constitutional originalism every bit the clapper franca of the rising motion of conservative legal elites. One did non receive got to endure an originalist inwards monastic tell to endure purpose of the Federalist Society network, but originalism was a convenient way of talking almost mutual conservative commitments to express authorities in addition to the dominion of law. 

Moreover, because the conservative motion eventually takes over the Republican Party, the Federalist Society becomes an increasingly of import network connecting immature conservatives to elite networks of ability from the 1980s onward. The Federalist Society eventually becomes the gateway to getting many dissimilar kinds of authorities jobs inwards Republican administrations, including judicial appointments.

Meese is the existent hero (or anti-hero, depending upon your politics) of Devins in addition to Baum's book. That is because he was at (or near) the centre of a serial of decisions past times conservative motion actors to practise a novel laid of elites that would serve every bit both the farm squad in addition to the reference grouping for conservative judges, every bit shortly every bit they could endure appointed past times Republican Presidents. Once that reference grouping of conservative legal elites was inwards place, Republican appointees would no longer drift to the left similar Harry Blackmun, David Souter, in addition to John Paul Stevens (the so-called Greenhouse Effect). They would rest firmly inwards the Federalist Society orbit, in addition to the legal intellectuals inwards the Federalist Society would vantage them with esteem—and fifty-fifty hero worship—for staying truthful to conservative principles. Viewed from the perspective of xxx years later, it was a bright strategy of leveraging social motion unloosen energy to influence—and indeed create—a novel shape of elite opinion. Devins in addition to Baum's volume explains how in addition to why conservative Justices are influenced past times this elite opinion. But the key invention is creating conservative elite watch on the outset place, which means, inwards this case, creating the conservative elites!

The seeds that Meese in addition to his allies planted inwards the mid to belatedly eighties bore fruit inwards the twenty-first century, with the engagement of Federalist Society members John Roberts, Sam Alito, Neil Gorsuch, in addition to Brett Kavanaugh. As the vocal says, squeamish operate if you lot tin larn it, in addition to you lot tin larn it if you lot try. The conservative motion did try, in addition to nosotros encounter the results today.