How liberal Law School professors fueled rise of Federalist Society — Harvard Gazette

Menu

Sections

Featured Topics

Featured series

Wondering

A series of random questions answered by Harvard experts.

Explore the Gazette

Read the latest

World is designed by, for men. It shouldn’t be.

Hot off the presses: The Declaration of Independence

‘Authentic’

Search

Search the Harvard GazetteGo

The Supreme Court’s landmark 2022 decision in Dobbs v. Jackson Women’s Health Organization dealt a seismic blow to supporters of reproductive rights by overturning Roe v. Wade (1973), rejecting the argument that the Constitution confers a federal right to abortion.

Dobbs was also momentous for conservatives like Justice Samuel Alito, the opinion’s author, who saw the reversal of Roe as the culmination of a 50-year project to remake the nation’s judiciary and jurisprudence, according to Peter S. Canellos in his new book, “Revenge For the Sixties: Sam Alito and the Triumph of the Conservative Legal Movement.”

In this edited conversation, Canellos, a former Boston Globe and Politico editor, chronicles how a left-wing intellectual battle at Harvard Law School during the 1970s drove conservatives to build a powerful network of organizations, like the Federalist Society and the Heritage Foundation, in an attempt to halt what they viewed as domination of the courts and law by the forces of “radical” liberalism.

Set the scene: What was happening at the Law School that so outraged conservatives?

The ’60s and ’70s were an era of radicalism in legal academia. The battle lines were not liberal versus conservative; they were radical versus mainstream. In those days, the mainstream was what we would consider today to be New Deal-style liberalism or the positions of the Supreme Court under Chief Justice Earl Warren.

Mainstream professors who dominated Harvard Law School and Yale Law School and other elite law schools generally were proud of the record of the Warren Court. They felt that if people stuck with the system, the Supreme Court had proven that the Constitution was adaptable to serious social change. The principles would remain the same, but the decisions of the Court could yield greater protections to people who had been traditionally excluded from American society.

The radicals felt that wasn’t enough. They felt that the whole system was burdened by precedents that were developed in an era when women were entirely excluded from the judiciary, when people of color were also excluded, when very outmoded and discredited modes of thinking were in style, and that the legal system needed much more radical change. That was the line of tension — the center left versus the far left — that took hold at Yale and at Harvard.

Critical Legal Studies was born out of that tension. It was an academic movement, but it also prided itself on being a practical movement.

Duncan Kennedy in 1980.<br>Harvard file photo

Harvard Law Professor Duncan Kennedy and other early leaders saw themselves as proposing practical solutions to address inequality in the law, changing the structure of legal education to include the viewpoints of people who were not elite scholars, who were not well-to-do, who were working class and traditionally excluded from society.

They thought all law schools are doing is preaching the value of precedent and the idea that if you follow the path of the law, case by case, you’re going to achieve a just result. But in fact, so many of society’s prejudices are embedded in the law that you really need to break the mold and create a new system of justice.

In opposition to all of this, a broad coalition came together to establish the Federalist Society in 1982. What were they worried about?

The formation of the conservative legal movement was a reaction to the perceived excesses of the Warren Court combined with fear of where an even more radical left — emblemized by Critical Legal Studies — would take the law.

The biggest fear at that time was to use the courts to expand “the welfare state.” There was a feeling that the liberty protections within the Constitution, and potentially several other avenues in the law, such as property law, could be construed in a way that created a right to welfare.

There was a movement on the left that took the view that to exercise your other constitutional rights, you had to have a minimal level of subsistence, and leftist law professors believed that a court could order the government to provide subsistence to all citizens.

The court had been ordering states to provide lawyers to indigent defendants, so it didn’t seem to conservatives like it was some enormous leap for the Supreme Court to say everybody has a right to a subsistence level of income. This was a special fear for conservatives, because it seemed to them to be the epitome of judicial overreach, of judges taking on the role of legislators.

In the book, you note that from early on the Federalist Society embraced a “results,...