The last few terms at the Supreme Court of the United States have been good for the cause of liberty. The Court has acted to protect public monuments that incorporate religious imagery, to affirm the free exercise rights of government employees in two significant cases (here and here), and to revitalize federalism among those on the left and the right as Roe v. Wade was overturned. These victories and others, however, could lull advocates of liberty into a misplaced sense of complacency or false confidence. There is still a lot of work to be done on quite a few fronts—the administrative state could use some pruning, property rights need to be bolstered, and the Court’s last word on the topic suggests that Congress can force Americans to spend their own money in prescribed ways. As someone who was almost certainly not Thomas Jefferson has said, “Eternal vigilance is the price of liberty.”

These issues and many more generally fall into the realm of public interest law, which the American Bar Association defines as the field that “encompasses protection of individual rights, advancement of justice, and improvements for the good of the general public.” Broadly speaking, these areas of the law are not lucrative areas to litigate and are often taken up by non-profit firms. Litigation in this area at its best fits into a much larger strategy of cultural advocacy and public education. But advocacy in this field is not just a question of social or political orientation. In fact, the fundamental orientation toward the right or toward the left is merely a point of departure with significant implications. Given this, public interest lawyers on the right need deliberate, rigorous, and specific training.

What is Public Interest Law?

In a famous 1905 speech, “The Opportunity in the Law,” to the Harvard Ethical Society, future Supreme Court Justice Louis Brandeis lamented that “able lawyers have to a large extent allowed themselves to become adjuncts of great corporations and have neglected their obligation to use their powers for the protection of the people.” This speech sparked interest in the legal community for work that served the public rather than those able to pay legal fees to the cleverest lawyers, and within a generation, the field of public interest law was formally established.

Over time the field has become most associated with the protection of individual rights, most concerned with justice and the promotion of the common good. All legal practice should be oriented toward these ends, but it is undeniably true that there are important cases that deal fundamentally with rights, justice, and broader questions of the social order which simply are not economically viable for litigants or for lawyers and law firms. Many of the most significant landmark Supreme Court cases are examples of this class of case: Brown v. Board of Education (1954), Miranda v. Arizona (1966), Roe v. Wade (1973), and Kennedy v. Bremerton School District (2022) to name a few. But many more obscure cases that have shaped public life and the rights of American citizens were litigated by lawyers and law firms that knew that the resources required to litigate them would never be realized through the ordinary means by which lawyers pay their bills.

Public interest law is distinct from other areas of practice within the law in several ways. First, on the most fundamental level, public interest lawyers are activists working to make the world a better place as they conceive of it. Second, public interest work intends to and does impact many more people and groups than just the litigants in a case. Lawyers are ethically bound to seek the best outcome for their clients, but they balance this with an understanding that the outcome of their cases has a broader effect. That broader effect is as important as the specific outcome. Third, while the work is pragmatic in nature, it is animated by ideals, for which almost all public interest lawyers have given up more lucrative career paths.

What Makes Conservative Public Interest Law Unique?

Retired federal Judge Janice Rogers Brown has quipped that as a conservative judge, she spent her time thinking of solutions to social problems, “unlike [her] liberal counterparts who spen[t] their time thinking of new ones.” This can (facetiously, of course) shine some light on the distinction between public interest lawyers on the left and on the right, too.

Many people associate public interest law with progressive causes. As an advocate, the founder of the field, Louis Brandeis, deftly used the law as a vehicle for effecting social change. He was a leading advocate of the progressive causes of his day, and once confirmed to the Supreme Court, he became a member of the Court’s left wing. So, it may be that his own public progressive alignment resulted in an early interest in public interest law practice among progressive activists. But also factoring into this broad alignment is that those on the left are generally more inclined to advocate for expanded government intervention, including through the courts, to realize a social agenda that is mostly unattainable via other means. Those on the right are historically disinclined toward “big government” solutions, so public interest law as practiced by those on the right tends to be conceptually defensive rather than offensive regardless of which party is plaintiff or defendant.

But there is also a fundamental difference in the approach to the law itself that should be a difference between left and right, but unfortunately is not. With only a few exceptions, the legal field today is dominated by legal positivists and judicial supremacists. These related positions are complex, but in the simplest terms, these approaches to the law accept that the law is what judges say it is. The job of the advocate, therefore, is to convince a judge rather than to make a cogent argument based on legitimate sources of law. This creates a system dominated by judges rather than the law.

Judicial supremacy and legal positivism are, however, innovations of the left. To the extent that those on the right approach the law in this way, they are playing on another’s field and with another’s tools. The instability of such a system of law favors those who seek to shape culture through the force of judge-created law rather than through more durable, but time-consuming means. 

Brandeis’s maxim, however, should be viewpoint-neutral—the law properly understood is and should be a vehicle for just social outcomes for all. But it must be done carefully and responsibly. We should actively seek to prepare lawyers to meet the unique challenges presented by public interest work, rather than just assume that the legal skills required to defend an insurance claim can just as easily be deployed in defense of a constitutional one. It is not easy to balance the challenges presented by shaping the law through the representation of real clients with real claims. As a result, those of us in the public interest law space should be training lawyers and law students in specific ways that law school generally does not.

Understand the Culture

If public interest lawyers are seeking to reshape the culture through the practice of law, then they should first understand the culture that they are attempting to shape. A broad liberal arts education allows students to understand the roots of Western culture and the system of justice that has emerged from it. By engaging with the Western canon they will learn to draw from thousands of years of philosophical, theological, and historical wisdom from across Western Civilization on behalf of liberty.

The United States Constitution did not emerge in a vacuum and the current state of the law is due, at least in part, to generation after generation of lawyers, judges, and legislators who have come to understand judges as the primary source of law. A political system, including its system of justice, “presupposes a civilization” and its laws emerge from a “stratum of social thought far too deep to be influenced by the actions of politicians,” in the words of Michael Oakeshott. A liberal arts education provides a much more comprehensive understanding of our own political and constitutional systems, how they have been shaped and misshaped, and will inform effective holistic strategies to reshape and restore them.

Understand Communities

Legal and political rights and obligations are not esoteric, disembodied concepts. They translate (or should translate) into the rules that guide our interactions with one another and with the state. Unions are affected by the litigation on behalf of workers and prison guards by litigation on behalf of prisoners. This is not just a matter of understanding “the opposition,” but an understanding of those upon whom obligations will be imposed once rights are recognized, restored, or defined.

Understanding these different communities should also lead to increased sensitivity about issues important to them that are clearly fraught, or else they would not be the subject of litigation. Sometimes those communities are not real persons, but corporations or governments, or unlikely to have a particular personal, rather than professional or economic, stake in the litigation. But peaceful, durable, and therefore legitimate, solutions are much more likely to flow from resolutions that account for the interests of as many impacted communities as possible. 

More pragmatically, this should also be advantageous in litigation. There are usually many communities that stand to benefit from the same public interest litigation, and often these communities do not share much in common. One example is in the field of religious liberty advocacy. Presbyterians, Buddhists, and Swedenborgians have few points of intersection, but a particular law or class of laws may disadvantage all three groups, but cultural acceptance or prejudice may make direct litigation on behalf of one group over the other more prudent. It was a vindication of the rights of those who practice Santeria, after all, that led to the clear instruction from the Court that, “a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous scrutiny,” a standard that has secured the free exercise of Presbyterians, Buddhists, and Swedenborgians alike.

Understand the Common Law

With almost no exception, American law students learn that common law is “judge-made law.” According to this simplistic framing, a judge in 1581 decided to settle a property dispute in a particular way for no particular reason and, as a result, gave to the common law nations the “Rule in Shelley’s Case” according to which all future similar disputes should be decided. But “the common law” is not a list of unrelated and unmoored principles. It represents solutions to conflicts rooted in immemorial custom. In that way, the common law is an integral part of a social and political tradition that has endured for thousands of years. These principles, like other aspects of social traditions, in the words of Roger Scruton, contain wisdom with the “residues of many trials and errors.” They are not arbitrary but are “answers that have been discovered to enduring questions.” To the extent that these principles have secured liberty and justice, discarding them imperils those same things.

Many common law principles have been abrogated by legislative action, but there still remains much room to appeal to these principles to preserve and promote liberty. Until the rise of the Environmental Protection Agency and the legislative and regulatory innovations that preceded or accompanied that, those whose property had been polluted had absolute rights under common law causes of action. Those private rights have been replaced with public fines that are treated merely as the cost of doing business rather than a prohibition or curb against pollution. Maybe the right to silence, derived from the common law, would provide a clean even if not uncontroversial, solution to present debates about preferred pronouns.

A revival of the common law tradition, the proper role of judges and judicial decision-making, and respect for legitimate sources of law will do much to restore a culture of liberty that will be durable and sustainable.

One thing is for sure—if public interest lawyers on the right are to receive the deliberate and rigorous training that will make them into the most effective advocates for liberty, they will not receive it in law schools as they exist today. The legal victories won by advocates for liberty merely based on the pronouncement of judges will endure only as long as sympathetic judges are making the pronouncements. Far too much is at stake to ignore the peril of such a state of affairs or the promise of creative strategies only made possible by a balanced approach to advocacy and well-rounded advocates.