Since Ancient Greece, scholars have contended that the law is "above men" that there are singular, "objective" meanings to laws and constitutions that judges should apply impartially to legal disputes. Then, around the late 1970s, a group of radical leftist lawyers (including Dartmouth's Martin Luther King Jr. Day keynote speaker critical race theorist Kimberl Crenshaw) began to challenge this notion, fusing the emerging world of post-modern thought with contemporary jurisprudence by arguing that the interpretation of the law itself is as inherently political as the legislators who write them. Crenshaw and others focused their work on revealing how those with the power to interpret the law do so in their best interests, often by reinforcing racial and socioeconomic inequalities. At conferences, scholars debated how to direct the politics of the law and radically reshape the legal system so that it ensured liberty for all.
Although the "critical legal studies" movement left an indelible impact on legal education, its proponents' attempt at launching a progressive revolution in the law has largely failed. In fact, in many ways the movement has backfired, offering the right wing a theoretical mechanism to appropriate and exploit. On a larger level, progressives have failed to realize just how skillfully the right wing has been learning from liberal tactics and carefully utilizing a wide swath of liberal ideas to further the conservative agenda.
This phenomenon began with the emergence of critical legal theory. When the movement began, the right wing jumped at the opportunity to accuse progressives of openly supporting "activist" judges, justifying their strategy of filling the judiciary with ultra-conservative appointees who supposedly practiced "judicial restraint." Although they claim to support justices who are "faithful to the Constitution," all the evidence shows that conservatives have learned valuable lessons from critical legal scholars about the inherent politics of the law, and they have no qualms about capitalizing on those politics to win legal battles. Consider the legal landscape today. Last summer, conservatives argued that Supreme Court Justice Sonia Sotomayor would be a "radical activist judge" if confirmed, despite her decades-long record of making moderate legal decisions. Yet Republicans rejoiced at the recent Citizens United v. Federal Election Commission Supreme Court decision, which declared that corporations have the same rights to political speech as do actual human beings. The radical decision, just as "activist" as, say, affirmative action case law, overturned volumes of legal precedent that affirmed the right of Congress to limit the amount of money corporations could contribute to political campaigns. Furthermore, within the last few weeks, right-wing lawyers and Republican attorneys general across the nation have launched a series of lawsuits challenging the constitutionality of President Barack Obama's health care reform bill. Once again, those who most vocally proclaim their opposition to "legislating from the bench" are the same ones fighting to overturn a bill that experts agree fit perfectly within constitutional bounds.
The conservative movement's cynical manipulation of progressive ideals is not limited to legal theory, however. Over time, the movement has learned to capitalize on the left wing's strategy of populist protest in order to further the right wing agenda. Gun-toting "tea-baggers" have advertised their incoherent hysteria against "Obamacare" as "grassroots activism." And Republican icons like Sarah Palin are using junk science funded by oil companies to sway public opinion against fighting climate change under the guise of "populism."
Strategically speaking, all of this means one thing: progressives are going to have to recognize the threat and reclaim their tactics before they lose them entirely. The right wing echo chamber has generated a dizzying amount of noise that threatens to obfuscate valuable political goals. By cynically regurgitating progressive tactics with a conservative spin as the Exxon-Mobil funded "populist" movement to deny the existence of climate change has done the conservatives are making it difficult to distinguish between genuine political attempts to create a better world and self-serving, profit-driven agendas. Whether it be in the courts, in Congress or on the streets, if progressives want to win, they'll need to distinguish themselves from the right-wing hypocrisy that is capitalizing on left-wing tools for change.
