The public interest: not just for the Left any more

Author: R. S. Radford

Public interest law is a term that was coined around 1970, essentially to provide cover for left-wing foundations to channel tax-free dollars to activists who would use the courts to advance a radical social agenda.  Most people still consider public interest law to be a euphemism for Leftist activism in the judicial arena.  There are at least seven student-edited law reviews that refer to public interest law in their titles; their contents are uniformly devoted to topics of “social justice,” “economic justice,” “diversity,” “underrepresented populations,” “LGBT issues,” and similar liberal buzzwords.  What is never addressed, of course, is exactly how or why a Leftist slant on social and political issues, as opposed to any conflicting viewpoint, equates to “the public interest.”

This unspoken assumption was shaken in 1973 by the formation of Pacific Legal Foundation, a nonprofit legal center funded entirely by charitable contributions, that advocates judicial protection of individual rights as opposed to group entitlements.  The howls of outrage from the Left still haven’t died down, but the passage of time has proven that a litigation program that supports property rights and opposes racial favoritism advances the public interest in a very literal and tangible sense.

Even academia – often the last institutional barrier to new ideas – has begun to get the message.  A pair of scholarly studies published in 2008 analyze the emergence of public-interest legal foundations with a libertarian or conservative focus.  Ann Southworth’s Lawyers of the Right (University of Chicago, 2008), while clearly holding the subject at arm’s length, at least penetrates the topic sufficiently to illustrate that non-liberal public-interest law is a complex, multifaceted, and sometimes contradictory amalgam of diverse causes and viewpoints.  Southworth breaks new ground in analyzing the role of the Federalist Society and the Heritage Foundation as “mediator groups” that – at least in theory – provide the proverbial “big tent” within which public interest groups oriented toward social conservatism, economic conservatism and libertarianism can find common ground.

Like Lawyers of the Right, Steven M. Teles’ The Rise of the Conservative Legal Movement (Princeton University, 2008) highlights the many different perspectives on the public interest that exist outside the paradigm of left-wing legal foundations.  Although it is a source of many valuable insights, Teles’ book is marred by the peculiar misconception that the earliest non-liberal public interest legal foundations (e.g. PLF) failed and were replaced by new and improved organizations like the Institute for Justice.  Obviously, PLF is both gratified and flattered to have outstanding organizations like IJ following the path we blazed, and we sincerely look forward to the day these groups will match our record at the Supreme Court.  But in the meantime, someone should point out to Prof. Teles that reports of our death have been greatly exaggerated!