Two First Amendment cases are among the notable cases that occupy the United States Supreme Court’s 2017–2018 docket. On December 5, 2017, the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a high-profile case that centers on a baker’s refusal to design a cake for a gay couple’s wedding. Especially salient in the wake of Obergefell v. Hodges—the Court’s 2015 holding that the Constitution protects the right of same-sex couples to marry—Masterpiece Cakeshop pits the baker’s assertion of free speech and free exercise rights against Colorado’s prohibition of sexual-orientation-based discrimination in public accommodations. On February 26, 2018, the Supreme Court heard arguments in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which challenges, on First Amendment grounds, whether public-sector unions may impose fees on non-union workers to support collective bargaining. Masterpiece Cakeshop and Janus are emblematic of a broader phenomenon: the deployment of legal advocacy as a strategic, political tool. If, for example, the Court rules as expected in Janus that workers can refuse to pay union fees, it “would be the culmination of a decades-long campaign by conservative groups aimed at weakening unions that represent public employees” (Adam Liptak, “Supreme Court Will Hear Case on Mandatory Fees to Unions,” New York Times, September 28, 2017).

The strategic use of litigation is often associated with the left, owing in part to a notable pattern of such deployment that has led to historic rulings such as Brown v. Board of Education (1954), Roe v. Wade (1973), and, more recently, Obergefell. Such legal mobilization—or “the politics of rights,” as Stuart A. Scheingold called it (The Politics of Rights: Lawyers, Public Policy, and Political Change, 1974)—has been much studied by political scientists, sociolegal scholars, and historians, especially in the context of progressive social movements (see, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 1991; and Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization, 1994).

Legal mobilization by the right has garnered less but, of late, increasing attention. In recent years, works focusing on the use of litigation by the right have helped broaden and deepen scholarly analysis of legal mobilization (see, e.g., Ann Southworth, Lawyers of the Right: Professionalizing the Conservative Coalition, 2008; Steven Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law, 2008; Thomas Keck, Judicial Politics in Polarized Times, 2014; and Amanda Hollis-Brusky, Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution, 2015). Two new and welcome additions to this field of research are The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (2016), by Jefferson Decker, and Defending Faith: The Politics of the Christian Conservative Legal Movement (2017), by Daniel Bennett. Though different in emphasis, method, and timeframe, these works share a focus on chronicling the use of courts, rights, and litigation by the conservative legal movement.

The Other Rights Revolution offers a political history and an illuminating backdrop to legal conflicts such as Janus. Decker details the emergence and development of “the conservative rights revolution” that “mobilized in the courts and in the arena of public opinion in the hopes of bringing the regulatory state to heel” (p. 2). He shows how the “public-interest right,” at once resisting and taking a lesson from the public-interest advocacy by the left, proposed legal activism and a new rights revolution in defense of property rights and the “free market” that would have far-reaching consequences for modern conservative ideology and American politics. “By teaching their fellow conservatives to stop worrying and love legal activism, the public-interest right normalized strategic litigation campaigns and showed how mucking up bad, unpopular, or excessively egalitarian social policies could further the cause of American conservatism, even when it undermined law, order, or the regularity of rules” (p. 9).

Decker relies on archival sources and case studies of several conservative legal foundations to provide a rich and compelling account of the rise and influence of the conservative legal movement. Though the epilogue briefly covers the post-Reagan era, the bulk of the book’s analysis begins in the mid-1960s and runs through the Reagan years. His account emphasizes the influence of an intellectual revolution grounded, on the one hand, in a response to the rise of the regulatory state, its “new social regulation,” and the public-interest left, and, on the other hand, in the values and sentiments of the American West. Providing case studies of Pacific Legal Foundation (based in California), Mountain States Legal Foundation (based in Colorado), and the National Legal Center (which chartered several regional foundations around the country), Decker highlights the importance of a distinctive way in which Westerners viewed the role of government. For example, they “understood how much their home-states could gain or lose from federal water projects, the National Parks program, and the outcome of wilderness study plans” (p. 223).

Daniel Bennett’s Defending Faith also examines legal advocacy on the right, however by focusing not on economic and property rights but rather on Christian conservatives and the culture war context in which cases like Masterpiece Cakeshop have emerged. Defending Faith takes up the Christian Legal Movement (CLM), a subset of the Christian right movement and, as Bennett describes it, an “industry within the broader movement” (p. 7). More specifically, Bennett spotlights Christian conservative legal organizations (CCLOs), relying on interviews with CCLO attorneys and content analysis of CCLO press releases. He seeks to examine the development and evolution of the CLM, underscoring the way the movement has increasingly deployed the frame of religious liberty in fighting on various culture war battlefields.

Bennett defines a CCLO as “a multi-issue organization dedicated to the interests of Christian conservatives primarily through legal advocacy, including litigation and public education” (p. 18). This definition leads him to identify ten groups (e.g., Alliance Defending Freedom, American Center for Law and Justice, Liberty Counsel, and Thomas More Society) that “share a commitment to legal advocacy in defense of Christian conservative interests” and that “differ substantively in terms of individual advocacy and strategic pursuit of the movement’s agenda” (p. 19). While excluding single-issue groups in a way that is not particularly well justified, Bennett’s detailed analysis of multi-issue CCLOs is organized around what he identifies as the main issues that make up their advocacy: religious freedom, traditional marriage, and sanctity of life. He also devotes a chapter to niche issues (e.g., pro-Christmas and anti-pornography advocacy) that are the focus of some CCLOs.

The Other Rights Revolution and Defending Faith respectively show how economic and Christian conservatives adapted to rights- and litigation-based strategies to advance their goals. As Decker concludes, the appeal of rights discourse grew among conservatives in the 1970s and 1980s, at a time when the left began to question its utility, because conservatives found the individualistic language of rights well tailored for the purpose of shielding private property from the intrusion of the regulatory state. Similarly, according to Bennett, Christian conservatives have embraced a “politics of rights” and have “become accustomed to the courts as a field of battle in the culture wars” (pp. 2–3).

Decker and Bennett also address the implications of the right’s turn to rights. The Other Rights Revolution convincingly demonstrates how lawyers and leaders of conservative legal foundations made their way to Washington and into the Reagan administration, and, in turn, influenced legal policy on numerous issues, including environmental policy, land regulation, and civil rights. What’s more, “some veterans of conservative legal organizations began to articulate a new conservative position on judicial activism,” encouraging embrace of “the rights revolution and the expansion of judicial power that it created” (pp. 181–182). Indeed, Decker suggests that “on a purely strategic level, ‘rights-talk’ and the judicial enforcement of individual liberties has probably worked better for conservatives than liberals in recent decades, thanks in no small part to the current composition of the US Supreme Court” (p. 225), a composition substantially influenced by modern conservatives.

According to Bennett, while Christian conservatives have lost some key battles in the culture wars, they have increasingly and strategically used religious liberty claims “to portray their efforts as protecting minority interests against a hostile, secular majority” (p. 131). Whether in fights over same-sex marriage, abortion, the Affordable Care Act, or nativity scene displays, and regardless of varying substantive and strategic agendas, the Christian legal movement’s use of religious liberty as a rights frame continues to “transform the culture wars” (p. 87). The First Amendment claims made by the plaintiff and the CCLOs submitting amicus briefs in Masterpiece Cakeshop provide just the sort of framing predicted by Bennett.

In many ways, the findings generated by Decker and Bennett are not surprising. That the right, like the left, has engaged in a “politics of rights” is not itself novel. Nevertheless, the contributions made by these books are valuable. The Other Rights Revolution, in particular, delivers a rich and textured account of how a rights-oriented strategy emerged and influenced the shape of American economic conservatism. It also provides quite clear evidence to counter the myth that judicial activism is an exclusive province of the left.

Defending Faith offers interesting, if somewhat incomplete, data to support its argument. To make a more convincing argument that CCLOs have shifted more heavily to a religious liberty frame, the research would have been bolstered by a more careful longitudinal analysis of the press releases that make up one of the book’s key data sources. In addition, Bennett concludes that “Past rhetoric from Christian conservative elites on traditional culture-war issues such as gay marriage and abortion is in a tone largely unheard-of among contemporary CCLOs” (p. 130). However, the author’s support for this conclusion relies so heavily on press releases and interviews that it may obscure whether CCLOs are using “past rhetoric” in other contexts. In other words, reliance on press releases and interviews—rather than, say, including more analysis of amicus briefs, which Bennett only occasionally uses (see, e.g., p. 58)—may skew the data. Still, that the press releases and interviews demonstrate the marked use of religious liberty as a frame over other types of frames is noteworthy. And beyond this main finding, Defending Faith makes other important contributions, showing, for example, that inclusive First Amendment rhetoric notwithstanding, most CCLOs focus on religious liberty for Christians and some CCLOs are critical of non-Christian religious traditions and activities.

The empirical contributions of The Other Rights Revolution and Defending Faith will speak to scholars in several fields, including political science, sociolegal studies, history, public policy, and American Studies. Well written and accessible, these works will also be of interest beyond academia.