There is a branch of government making public policy in America today that is mostly unelected: the courts.
Last year’s Hobby Lobby litigation and the King v. Burwell case are doing more to define the boundaries of Obamacare than all the flounderings in Congress. In this and other areas, it seems that if lawsuits are to be the new fast-track to policy reform, conservatives have decided not to let liberals have all the fun.
Savvy donors have been funding lawsuits for a long time as a quick route to social change. Booker T. Washington secretly paid for the Giles v. Harris case in 1903 in the hope of undoing racial disenfranchisement. But it was in the 1960s that paying for and ginning up lawsuits became a large-scale donor strategy.
In the early ’60s, the Ford Foundation was America’s biggest philanthropic organizations, and it was devoted to mild liberalism. When it hired McGeorge Bundy as its new president in 1966, though, Ford made a leap into aggressive legal activism. Bundy was an enthusiast for the re-engineering of society by government, and litigation was to be his organization’s primary tool.
Racial litigators became the favorite recipients of Ford’s enormous cash flow, rising from 2.5 percent of the foundation’s grants in 1960 to fully 40 percent by 1970. The vision Bundy wanted to promote outstripped the ability of the traditional institutions of liberal public policy to provide funding, so Ford created many new groups. The effort kicked off in 1967 with big grants to the Lawyers’ Committee for Civil Rights Under Law, and the NAACP Legal Defense Fund. Ford-powered litigation soon created policies of direct racial preference in public contracting, education and employment.
The foundation also created several ethnic action groups from scratch. The Mexican American Legal Defense and Educational Fund received more than $2 million in startup cash in 1969, and heavy ongoing support in succeeding years. MALDEF prevailed in Plyer v. Doe, in which the Supreme Court decided that public schools must open their doors to illegal immigrants.
These tidal shifts inspired a few modest responses from donors with different political principles. In 1968, the National Right to Work Legal Defense Foundation, for instance, began to help workers fend off compulsory unionization via court cases. In the 1970s, several broad-spectrum conservative public-interest law firms were founded on a regional basis. The most successful was the Pacific Legal Foundation, started in 1973.
Later in the ’80s, with support from the Bradley, Olin, and Smith Richardson foundations, attorneys Michael Greve and Michael McDonald opened the Center for Individual Rights. In 1996, the center notched a clear victory against color-coded college admissions in Hopwood v. Texas. But overall, conservative efforts were weak.
In 1991, a new right-of-center public-interest law firm called the Institute for Justice began to define civil rights in fresh ways. It aggressively litigated in four areas: economic rights, free speech, private property protection and school choice, taking numerous cases to the Supreme Court. In Zelman v. Simmons-Harris the high court endorsed public funding of private-school vouchers. In Kelo v. City of New London the justices rejected IJ’s call to forbid use of eminent domain for economic development, but a public backlash stirred up by the case compelled state legislatures around the country to restrict the use of eminent domain via new laws.
After having had the game to themselves for many decades while conservatives held their noses against judicial activism, the Ford Foundation, ACLU, NAACP Legal Defense Fund, MALDEF, Environmental Defense Fund, Sierra Club and other left-activists now have company. Our legislatures may be gridlocked, but our courts will be busy.
Karl Zinsmeister, along with John J. Miller, is the author of Agenda Setting: A Wise Giver’s Guide to Influencing Public Policy, published by The Philanthropy Roundtable (2015). This oped is based on the book. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
