Many scholars have written about the role of courts in liberal democracies. They grapple with tough questions about how to justify the outsized role that unelected judges play in our democracy. Beginning with Alexander Bickel who famously coined the phrase, “the counter-majoritarian difficulty,”1 and continuing with scholars like John Hart Ely, Mark Tushnet, and Jeremy Waldron, to name just a few, critics have analyzed what role courts should play in ushering in social change. Ann Southworth has skillfully complemented this literature by arguing that it is not just judges who have power to alter the social and political landscape. Lawyers at legal advocacy organizations play a significant role in this process.
Professor Southworth’s article, Conservative Legal Advocacy: Organizations and the Roberts Court, draws on the example of campaign finance reform to show how conservative legal advocacy organizations engaged in a coordinated effort to change precedent and push an ideological agenda. These organizations consciously followed the example of civil rights groups like the NAACP and the ACLU, occasionally even drawing on precedent established by their liberal predecessors. The article is an important reminder that Supreme Court decisions are not simply a product of judicial appointments but are also affected by well-funded legal advocacy organizations and their lawyers.
One of the most important insights in Southworth’s article comes from her explanation of how conservative organizations contributed to doctrinal change. They responded to signals from the justices, often crafting legal theories and choosing plaintiffs based on those clues. The organized effort may have been a response to a memo Lewis F. Powell, Jr. sent to the U.S. Chamber of Commerce prior to his appointment to the Supreme Court, calling for an organized response to what he believed was a coordinated liberal attack on the American economic system.2 Powell identified courts as the key engine of social change. Whether in direct response to this call to arms or not, conservative groups organized around this mission.
Southworth draws on campaign finance as an example of the powerful effect conservative advocacy groups and their lawyers have had on the law and society as a whole. For instance, groups like the Pacific Legal Foundation, Northeastern Legal Foundation, and Mid-America Legal Foundation banded together to promote theories that shifted the law and public perception. The Federalist Society Free Speech and Election Law group helped provide a forum to host and encourage new conservative legal theories. Building on language in earlier cases, conservative cause lawyers developed the idea that restrictions on campaign spending amounted to an impermissible intrusion on speech. Tapping into a growing conservative populist distrust of elites, the legal theories were framed as an effort to combat an attack on the “little guy’s” right to free speech. Social conservatives like anti-abortion and gun rights groups were not initially part of the coalition. Recognizing the growing popularity of the movement, however, many of these organizations eventually joined the effort to overturn campaign reform laws.
The conservative advocacy groups developed rhetoric around freedom that served to popularize an agenda that was not clearly a grassroots cause. They did this to gain popular support and in response to cues from the Supreme Court, producing a fairly quick shift that culminated in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), which held that legislatures cannot restrict corporate spending on elections because these expenditures are protected political speech. Southworth’s description of how doctrinal change was effected in a relatively short amount of time contributes to our understanding of how unelected judges and cause lawyers can determine the course of law and society.
While the article is mostly descriptive, Southworth concludes that the result, at least in the context of campaign finance reform, is a doctrine that is “seriously out of touch with public opinion.” While conservative groups rallied around the popular appeal of free-speech rhetoric, they never gained full support for the ultimate goal—allowing corporations such significant and unchecked power over elections. Lawyers have pushed the Supreme Court to extend the doctrine and embed precedent that makes it almost impossible for legislatures to respond to public calls for reform. Southworth does not explicitly conclude, but it is not a stretch to infer from her research, that legal advocacy organizations can be dangerous. Lawyers, who owe no loyalty to the public as a whole and may have picked a cause based on their own ideology or political leanings, can use their skill to help push the court further away from public opinion, frustrating popular attempts at transparency and reform. Thus, as scholars like Bickel pointed out, lawyers, like unelected judges, have contributed to a process that can undermine institutional legitimacy and destabilize democracies.
In describing how conservative groups consciously borrowed from liberal advocacy organizations, Southworth’s article raises an important question. Is there a danger in this type of advocacy that lawyers have and will contribute to political polarization by pushing an agenda that is not shared by a majority? In doing so, can cause lawyers inadvertently add to the public’s growing disaffection by using the courts to do what the legislatures cannot and would not because of their accountability to the public? Professor Southworth does not explicitly opine beyond the campaign finance example, but her article raises questions about the wisdom of using the courts to achieve a political end and should give pause to movement lawyers on both sides of the aisle. Whose interests are really being served by this sort of concerted effort to effect policy change through law? And even if the outcome is desirable, how durable can the consequences be if it strays, sometimes drastically, from public opinion?
Southworth’s essay contributes to an ongoing conversation among scholars of the law and legal profession. In 1974, Stuart Scheingold argued that Americans place too much faith in courts to secure rights and effect social change.3 Michael Klarman confirms this thesis in his masterful description of the backlash to the civil rights movement.4 David Luban argues that the role of cause lawyers is a feature of the system, not a bug. Lawyers can and should serve as moral leaders in a democratic society.5 Southworth’s work poses a significant challenge to Luban by suggesting that lawyers can and have accelerated social change in opposite ideological directions.
Perhaps, Luban’s thesis was at least in part tied to the time-period he observed. As Laura Kalman argued in The Strange Career of Legal Liberalism, the progressive use of courts to effect social change was linked to the widely accepted judicial philosophy, legal realism, as well the legacy of the Warren Court, which was inclined to read the constitution to protect civil liberties and promote other progressive goals. Southworth’s article adds an important coda to this book and challenges readers to think about some of the problems inherent in using the legal system to effect social change that cannot be achieved through electoral politics. By examining how conservative advocacy groups consciously followed the lead of liberal civil rights organizations, Southworth prompts her readers to reflect on how lawyers use their training, skill, and power to shape society.
Perhaps it is inevitable that future groups on either side of the political spectrum will capitalize on the make-up and judicial philosophy of the Supreme Court and the judiciary as a whole, but Southworth’s piece should at least prompt some thought about the wisdom of this choice. Conservatives may be able to gain influence by deliberately bringing significant divisive social questions to the current Supreme Court, but this can create a destabilizing divide between popular views and the law. By unearthing echoes of the civil rights movement in the current coordinated effort to change the law, Southworth raises the question of whether conservative advocacy groups may achieve a fleeting, if not, Pyrrhic victory.
In sum, Southworth’s article is worth a read for its description of how campaign finance law evolved over time. But it also provides insight into how Supreme Court law is made and it raises important questions about the outsized role legal advocacy organizations and lawyers play in the process.
- Alexander Bickel, The Least Dangerous Branch (1962).
- Memorandum from Lewis F. Powell, Jr. to Eugene B. Sydnor, Jr., Chairman, Educ. Comm., U.S. Chamber of Com. 1 (Aug. 23, 1971).
- Stuart Scheingold, The Myth of Rights (1974).
- Michael J. Klarman, From Jim Crow to Civil Rights (2004).
- David Luban, Lawyers and Justice (1988).
