Balkinization is hosting an online symposium on the new book The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019) by Neal Devins and Lawrence Baum. Jack Balkin's contribution is All Hail Ed Meese! From the introduction:
Devins and Baum's The Company They Keep is a fine book that nevertheless manages to bury the lede. In order not to make the same mistake, I will state the theme of this review in the first paragraph. What Devins and Baum actually show—in spite of themselves—is how social movements change the Constitution. Moreover, the hero of the book is Ronald Reagan's second Attorney General, Edwin Meese, who does not even make an appearance until Chapter Three.
And on Meese's role:
But how do you change the minds of these elites? Once again there are two ways to do it. We've already described the first way: sustained social and political mobilizations that influence elite opinion. Once you get elite opinion on your side, the Justices connected to those elite networks will (eventually) follow.
But there's also a second way to change elite opinion: Create a new elite culture and *grow your own elites,* and work to make sure that judges and Justices are picked from that group.
… Meese set out to use his position [as Attorney General] to create a cadre of conservative legal intellectuals in the Reagan Justice Department. He reached out to law students in the newly-formed Federalist Society. Along with other older conservative intellectuals like Antonin Scalia, he worked to create a legal counter-establishment that would grow over time, and would become an indispensable network for locating young conservative talent and placing that talent in key positions.
As Steve Teles explains, this counter-establishment was aided by strategic additions of resources and support by various conservative funders. And as Amanda Hollis-Brusky has explained in her book Ideas with Consequences, the Federalist Society, following Meese's and Robert Bork's lead, eventually settled on constitutional originalism as the lingua franca of the rising movement of conservative legal elites. One did not have to be an originalist in order to be part of the Federalist Society network, but originalism was a convenient way of talking about common conservative commitments to limited government and the rule of law.
Moreover, because the conservative movement eventually takes over the Republican Party, the Federalist Society becomes an increasingly important network connecting young conservatives to elite networks of power from the 1980s onward. The Federalist Society eventually becomes the gateway to getting many different kinds of government jobs in Republican administrations, including judicial appointments.
Meese is the real hero (or anti-hero, depending upon your politics) of Devins and Baum's book. That is because he was at (or near) the center of a series of decisions by conservative movement actors to create a new set of elites that would serve as both the farm team and the reference group for conservative judges, as soon as they could be appointed by Republican Presidents. … Devins and Baum's book explains how and why conservative Justices are influenced by this elite opinion. But the key innovation is creating conservative elite opinion on the first place, which means, in this case, creating the conservative elites!
Posted at 6:57 AM