National Review Online attacked "contemporary progressivism" because it is "led by radical lawyers," a dubious proposition that ignores the fact that the right-wing legal movement is currently attempting to overturn decades of Supreme Court precedent.
Without any acknowledgment of the recent wave of conservative challenges to long-standing law that underpins the successes of the New Deal and the civil rights movement, NRO condemned progressives for approaching the legal profession "as a kind of revolutionary instrument." From NRO:
Perhaps the most alarming fact about contemporary progressivism is that it is a movement led by radical lawyers. The use of the law to undermine our constitutional tradition is in effect the use of the law to undermine itself. But worse than that, it is the use of the legal profession as a kind of revolutionary instrument. That is a particular problem because the legal profession has always had a special role in the Anglo-American common law tradition as precisely an anti-revolutionary instrument--a repository of cautionary precedent and prudent mulishness. "The English or the American lawyer inquires into what has been done, the French lawyer into what one ought to wish to do," Alexis de Tocqueville wrote in 1835.
As the more nuanced essay that NRO relied on noted, organizations like the NAACP did in fact have to challenge racist precedent in order to overthrow Jim Crow, a form of "radical lawyer[ing]" that has inspired practitioners since.
What the NRO failed to acknowledge, however, is that if challenging "what has been done" is "undermin[ing] our constitutional tradition," it is contemporary conservatism that is currently taking its turn, with its relentless assault on modern constitutional law.
Spurred on by right-wing media, the conservative legal movement has steadily increased its challenges to established precedent on topics ranging from the ability of the federal government to regulate the economy, the protection of the right to vote from racial discrimination, the ability for workers to effectively advocate, access to justice for plaintiffs other than well-funded corporations, prohibitions on the corruptive influence of money on elections, the ability of the country to offer equal opportunity in education for all, and the president's centuries-old power to appoint officials during recesses, just to name a few.
And then, of course, there is abortion.
Even the NRO has admitted its utter disdain for seminal constitutional decisions like Roe v. Wade or Casey v. Planned Parenthood in its endorsement of blatantly unconstitutional anti-choice efforts, because it claims those "Supreme Court decisions...lack constitutional merit." In this goal of overturning a crucial part of modern constitutional law, right-wing media's outspoken opposition to reproductive rights mirrors its hatred of sex equality law, and reflects perfectly the sentiments of radical activists who know full well the wave of anti-choice legislation they are pushing through state legislatures at an alarming pace are plainly at odds with Roe and Casey.
The challenges to civil rights laws and the text and history of the Reconstruction Amendments that guard against racial discrimination are just as transparent in their intentions. In fact, the right-wing funded man behind the recent challenges to both voting rights and affirmative action precedent freely adopts a litigation strategy plainly modeled after the exact same one used by NAACP lawyers that NRO vilifies.
This strategy has once again proven successful - perversely in the opposite direction than what it was originally used for - as the recent gutting of the Voting Rights Act in Shelby County v. Holder demonstrated. Indeed, as with abortion rights, the Fourteenth Amendment prohibition on racial discrimination will yet again be before the Supreme Court this upcoming term, when the justices will be asked to overturn a string of decisions from the 1960s that disallow rigging the political process to the detriment of disfavored minorities.
Ultimately, regardless of what one thinks of the proper role of the American "legal profession," the simple fact is that it is currently contemporary conservatives, not progressives, who are trying to roll back the past half century. With its strange obsession with the "radical lawyers" of the left, the NRO obscures the real story of how the historic accomplishments of legal giants like Thurgood Marshall are very much now at risk.
Revolutionary instrument, indeed.