The End of an Era

America is finally beginning to sit up and take note of the Right Wing. The founding of the Equal Justice Society, which is committed to engaging the Right is a key part of this awakening. The progressive legal community has only recently taken its first steps toward understanding and engaging the powerful array of right wing legal organizations—including the Federalist Society, the American Center for Law and Justice, and the National Legal Center for the Public Interest—that have changed the face of American law.

EJS is concerned with the rise of the Right because they understand that a century's worth of legal progress, and unfinished business, in social and racial justice is at stake. Only a strategically conscious movement can defeat this formidable apparatus of reaction, which has been systematically built up and massively funded for three decades.

Just a few years ago there was barely a handful of somewhat isolated, Cassandra-like researchers who delved seriously into the Right's political architecture and ideas, and warned of the radicalism of its long-term agenda. By and large, they were politely ignored, or greeted with skepticism regarding the Right's degree of extremism or potential to entrench itself in power. As the Reagan administration receded and the age of Clinton dawned, people sighed and went to sleep as far as the threat from the Right was concerned.

The Clinton impeachment wars, Bush v. Gore, the Patriot Act, and legal memos declaring the Geneva conventions "quaint" and torture short of organ failure permissible, have shaken people awake. The previous certainty that the ascendancy of the Right was part of the natural alternating cycles of conservatism and liberalism in America has begun to yield to a sense of foreboding, of "just what are these people capable of" and "how long will they control the destiny of our country and the world?"

STORIES IN THIS ISSUE

Contents

Welcome to the launch of our first EJS e-newsletter!

Racial Justice and Affirmative Action: The Year in Review

SF Reception for EJS Board Chair, Professor Charles Ogletree

Notes on the Right

Preserving Diversity in Higher Education: A Manual on Admissions Policies and Procedures After the University of Michigan Decisions

EJS Law Review Summary:
Dismantling the Intent Doctrine: Five Key Law Review Articles

The Justice Journal - EJS Calendar of Events

EJS Staff News

Making Change - Become a Part of the Equal Justice Society

Concern is being voiced in even the most respectable quarters of the legal community, as when Judge Guido Calabresi, a quiet and moderate Second Circuit federal judge whose nephew co-founded the Federalist Society, recently felt compelled to draw some cautious parallels between our times and his childhood in Mussolini's Italy. Predictably, the judge has been excoriated by the Right despite his courage and sense of patriotism.

Hardly a month passes without a major new book being published, organization floated, website launched, or documentary produced to "counter the right wing." Some are grounded in a solid knowledge of the Right, such as David Brock's new book, The Republican Noise Machine. Others are works of trendy instant analysis or election cycle politics. Even The Economist's U.S. beat reporters, John Micklethwaite and Adrian Wooldridge, have weighed in a well-promoted book, The Right Nation, declaring the permanence of the conservative revolution.

But the hour is late. The Federal appellate courts are overwhelmingly controlled by the Right, and a raft of Federalist Society judges installed by the Bush administration will be with us for a generation. Already, the organizations that waged a decade-long strategic litigation war against diversity policies are gearing up to eviscerate the Grutter decision and wage a campaign of intimidation against universities and officials who dare to follow the Supreme Court's roadmap.

True, the Supreme Court, to the chagrin of conservatives, has narrowly upheld affirmative action in higher education, relieved lesbian and gay people of the threat of a police knock on the bedroom door, chipped away at a draconian system of mandatory sentencing championed by the Right, and granted prisoners in the "war on terror" a right to basic habeas proceedings.

However, with looming vacancies on the high court, the era of Justice O'Connor's balancing role is coming to an end. Should the coming elections deliver a conservative Senate prepared to pack the Supreme Court with hard-line ideologues, and a president willing to nominate them, then we will confront the prospect of a right wing constitutional revolution.

Whether the situation is as grave as Judge Calabresi implies remains to be seen. But the answer to the historical question raised by his comparison of two eras is that much depends on how active we are in fighting to keep America, with all of its problems, relatively free. The legal community, and especially the progressive legal community, has a special responsibility to be in the front ranks of this struggle. This column will hopefully help them and others to better understand who they are up against.

Lee Cokorinos conducts political research on right-wing movements and organizations. He is the author of The Assault on Diversity: An Organized Challenge to Racial and Gender Justice (Rowman & Littlefield, 2003), and can be reached at rightnotes@earthlink.net.