The Democracy Effects of Legal Polarization: Movement Lawyering at the Dawn of the Unitary Executive

by Deborah Pearlstein

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The success of the conservative legal movement in reshaping the Supreme Court has unquestionably helped transform the substance of constitutional law in ways that advance the movement’s longstanding political agenda: reverse the civil rights-era constitutionalization of civil and social equality rights, and reduce government regulation of private sector business enabled by the modern administrative state. Less well understood is the movement’s role beyond the courts, and the range of ways it has shifted once shared norms that helped distinguish the practice of law from the practice of politics in the United States. This Article surfaces one example of that phenomenon, tracing the movement’s efforts beginning in the 1980s to advance a unitary executive theory of constitutional power inside the Executive Branch. Inside the Department of Justice, these efforts functioned to kneecap a suite of post-Watergate ethics reforms designed to guard against corruption or other misconduct by government lawyers. Outside the Department, aided by an increasingly polarized system of professional incentives the movement likewise pioneered, inadequate ethics accountability at the top of the profession functioned to undermine acceptance of professional norms more broadly. Among the norms most damaged: the belief that lawyers are bound by professional duties that transcend commitments to partisan loyalty. This recovered history in part underscores the extent to which judicial rulings are at best lagging indicators of legal revolutions. It likewise offers a case study of the structural consequences of theories of constitutional power engineered around circumstantial partisan interest. Above all, it illustrates how destabilizing the norms that support rule-of-law systems can weaken constitutional democracy across the board.