Litigating for Liberty - Interview with Scott G. Bullock (Institute for Justice)

Description: In the following interview, Scott G. Bullock recapitulates and expands upon the main points of a talk he gave at an IOS [now known as the Atlas Society] Summer Seminar in which he discussed his work as a staff attorney with the Institute for Justice in Washington, D.C., where he litigates cases involving civil rights, property rights, free speech, and other constitutional issues.

The Institute for Justice, founded in September 1991 by William H. Mellor and Clint Bolick, describes itself as “a public interest, nonprofit law center created to advance a rule of law under which individuals control their destinies as free and responsible members of society.”

Bullock’s current cases include constitutional challenges to inspection laws on behalf of tenants in rental housing and a First Amendment lawsuit attacking the Commodity Futures Trading Commissions campaign against investment newsletters and web sites. His views on legal issues have appeared in the Wall Street Journal, the National Journal, and the New York Times, and on “CBS Evening News,” “Good Morning America,” and “National Public Radio,” among other publications and broadcasts.

Bullock received his law degree from the University of Pittsburgh and his B.A. from Grove City College.

Navigator: In your talk, you put the Institute for Justice (IJ) in a broad historical context. Could you briefly recapitulate that context, beginning with IJ's reason for calling itself a “public interest” law firm?

Bullock: I share the skepticism that most libertarians and Objectivists probably have when they hear the term “public interest.” But public-interest law is really nothing more than the use of litigation and related means to represent the interests of a client and a cause, for the purpose of shaping the law. In private practice, attorneys are hired-guns, doing whatever the client desires, within ethical and legal limits (one hopes). But public-interest lawyers represent individuals for the purpose of pursuing a larger goal. Of course, the larger goal of the Institute for Justice is expanding individual liberty and restricting the role of government. But public-interest law firms run the gamut of the ideological spectrum, from anti-abortion groups to the ACLU to the NAACP. The first public-interest law firms were decidedly on the Left, but their approach to litigation—in particular their strategies and tactics—provide important lessons for virtually every public-interest group, including the Institute for Justice.

Navigator: By your reckoning, the ACLU was the first such group. What were its strengths, and what were its weaknesses?

Bullock: The ACLU started as a group primarily interested in opposing some of the excesses of the federal government during the World War I era, such as the imprisonment of conscientious objectors, and the Palmer raids, in which anarchists and the like were searched and often summarily detained. To that extent, they did important work. And in those early years, the ACLU learned the power of public opinion in changing the law.

The Institute for Justice has really taken this lesson to heart. We actively litigate cases not only in the courts but in the media as well, putting the spotlight on violations of liberties by bureaucrats and lawmakers. As the ACLU discovered, you can lose a case in court but still create such a climate of outrage around a law that it will be changed legislatively or the government will be too embarrassed or humiliated to continue enforcing it. Today, while the ACLU still does some good work, especially in the free speech arena, it has strayed far from its origins as a principled civil liberties group and has become more of a traditional left-wing advocacy organization.

Navigator: The second historical example you cited was the NAACP’s turn to litigation. What was its lesson?

Bullock: At first, the NAACP was not interested in litigation. But in 1930 an individual by the name of Nathan Margold mapped out a long-range litigation strategy to end the pernicious “separate-but-equal” doctrine that the Supreme Court had upheld in the wake of the Civil War and the Jim Crow era. Of course, this incredibly successful strategy culminated with the landmark Supreme Court decision Brown v. Board of Education, which ended legal discrimination. Using the Margold litigation blueprint, the NAACP’s 1934 annual report stated that “it should be made clear that the campaign is a carefully planned one to secure decisions, rulings, and public opinion on broad principles instead of being devoted to miscellaneous cases.”

That statement applies with equal force to the Institute for Justice. We do not take on random cases. Each one of our cases is carefully chosen on the basis of its potential to change the law. The NAACP demonstrated the importance of having a long-range strategy to guide your case selection.

Navigator: You also mentioned the consumer groups of the 1960s. What has the IJ learned from them?

Bullock: Well, I would not like to admit to learning anything from Ralph Nader, but I think the institute—in particular, our founder, Chip Mellor, who went to school in the 1960s—learned from these groups the power of applied idealism and the importance of capturing the rhetoric in shaping the terms of the debate. Nader and his allies were able to convince the public that they wore the white hats, and that anybody who opposed them was not only wrong but against the best interests of the public. That really resonated with people.

Navigator: You said that, in the 1970s, a Chamber of Commerce study by Lewis Powell, later a Supreme Court Justice, gave rise to some pro-business groups. Which ones did you have in mind? And how effective were they?

Bullock: Many individuals coming out of then-Governor Ronald Reagan’s administration in California saw the powerful influence public-interest law had on the nation and thought it was important to have a counterweight. The first conservative public interest group was the Pacific Legal Foundation, founded in 1973, and based in Sacramento, California. Others founded around that time were the Mountain States Legal Foundation, the Washington Legal Foundation, and the Gulf and Great Plains Legal Foundation.

Many of these organizations did important work defending individual liberty, but too much of their work was reactive, fighting yesterday's battles. Moreover, they did not have much of a long-range strategy for where they wanted to go, apart from always opposing the Left. Lastly, many of them were too closely tied to business groups and that seemed to skew their case selection toward defending business rather than capitalism and the free market. As every Objectivist knows, there is a world of difference between being pro-business and being pro-free enterprise. Because of the involvement of corporate counsels and CEOs in the direction of these organizations, they were not always committed to open competition and free markets, especially if it was to the detriment of an established business. This understandably hurt their credibility and undermined their influence. But many of these early groups learned those lessons, changed their approaches, and flourish today; others did not and died out.

Navigator: All right. Now, tell us about the Institute for Justice. Who founded it, and when?

Bullock: The institute was founded by Chip Mellor and Clint Bolick in 1991. I was fortunate enough to join the institute when it first opened its doors, right after my graduation from law school, so I thankfully never had to go the grueling private-practice route. Both Chip and Clint had worked together in the early 1980s at the Mountain States Legal Foundation and vowed that one day they would open a libertarian public-interest law firm committed to effectuating real change in the law through principled and strategic advocacy. They realized that dream after several years of working in the Reagan administration and libertarian and conservative groups. Not surprisingly, Chip and Clint were both heavily influenced by Ayn Rand. That shows in their lifelong commitment to protecting individual liberties from state encroachment. In fact, Clint has a first edition Atlas Shrugged that I very much covet.

Navigator: What are IJ’s specialties as a public-interest law firm?

Bullock: We specialize in four areas: economic liberty, educational freedom, private property rights, and First Amendment rights. We are also involved in other areas that impact directly on reducing what we call “the regulatory welfare state.” Examples of these areas are our campaign to end the use of racial classifications and preferences by government and our defense of welfare-reform efforts that seek to end welfare as a “right” protected under the Constitution. Our overriding objective is to challenge government laws that keep people from directing their own lives and livelihoods.

Navigator: Even with this focus, you must be swamped with requests for representation. What do you look for in a case?

Bullock: We are swamped with requests, especially when people think, “Hey, free lawyer.” (The institute does not charge clients for its legal services and relies on private contributions to finance its work.) Most often, we get requests from people with legitimate complaints against the government, but the requests are simply outside our areas of expertise, or more likely, the cases are too complex factually for good public interest law. One of the primary things we look for in a case is simple facts. Not only does this cut down on the costs of litigation, but it increases the likelihood of setting strong and wide ranging precedents that can be used by other individuals.

We always look first and foremost to see whether this could be a precedent- setting case. We also look to see whether the circumstances of a particular case are outrageous enough to get the blood of the public boiling, and perhaps even the blood of a judge. Also, we want our clients to be sympathetic spokespeople for a particular cause, because in all of our cases our clients are out front, speaking to the media and to the public. Of course, we also need a plausible legal theory in order to litigate a particular case. When all of these factors are taken into account, we probably have to reject 95 percent of the cases that come before us. If the person has a legitimate case, however, we try to set them up with another organization or with a local attorney who may be willing to take on the case pro bono, that is, without charge to the client.

Navigator: Tell us about one of IJ's notable early cases.

Bullock: The first case I was involved in at the institute (and as a lawyer) was Uqdah v. District of Columbia, a case challenging the District of Columbia’s cosmetology laws, on behalf of an African hair braider. The government required Taalib-Din Uqdah and his employees to obtain cosmetology licenses in order to continue to remain in business. They would have to go to school for about nine months at a cost of about $5,000, even though they do not teach hair braiding in cosmetology school. It was a classic example of irrational economic regulation that served only as a barrier to opportunity. We argued that Uqdah had a constitutional right to pursue an honest living free from unreasonable government regulation. As it happened, the law was repealed while the case was pending on appeal. But that was due to the public outcry and media pressure we were able to generate over the controversy, including a John Stossel “20/20” piece with the very unbiased title, “Rules, Rules, Stupid Rules.” Uqdah has since gone on to become a passionate and eloquent spokesperson for economic liberty.

Another notable early case was our participation in Lucas v. South Carolina Coastal Council, where the Supreme Court once again began putting some teeth into the Takings Clause of the Constitution. We filed an influential brief that Chip and I co-authored with Richard Epstein of the University of Chicago Law School.

Navigator: How about a notable recent case?

Bullock: In the past couple of years, we have been involved in the fight against mandatory community-service requirements in the public schools. This pernicious doctrine has been spreading. We thought the dispute captured perfectly the differing philosophies at the heart of education and politics: Do individuals have the right to choose whether or not they will serve others, or do individuals owe a “duty” to others, defined by government? We challenged the ability of public schools to require young people to serve others, over their own and their parents’ objections, arguing that the decision to volunteer must be based upon an individual's conscience. Unfortunately, the courts have so far upheld the power of schools to require service. The school districts successfully pushed the “Pandora’s Box” argument to the court, claiming that if this particular program was struck down, it would open up the floodgates for challenging all public school requirements.

A number of constitutional problems remain with these programs, though. For instance, many schools insist on deciding what is “acceptable” community service, and often their lists do not include religious service or work for politically incorrect groups. This practice blatantly violates the First Amendment, and I expect that we will challenge these restrictions even if we cannot overturn the requirement itself. In fact, maybe we could have a student claim that he wants to provide “service” to the Institute for Objectivist Studies and see what a school board does. I would imagine, however, that you do not accept forced labor at IOS.

Navigator: Give us an example of a major IJ case that is currently underway?

Bullock: A case currently heating up for us is our suit seeking to end New York laws that arbitrarily prohibit individuals from providing safe, efficient, and inexpensive van service in Queens and Brooklyn. It is the latest step in our campaign to restore judicial protection for the right of start-up capitalists to earn an honest living.

The “dollar vans” at stake in this case are operated primarily by Caribbean immigrants who provide a desperately needed service to poor, predominately minority communities. However, the New York Metropolitan Transit Authority and its politically influential public transit union want to get rid of the vans. As we all know, public monopolies do not like competition, and they have powerful allies on the New York City Council. Our clients in this case truly embody the American Dream of starting a business and working your way up. This is going to be a long and hard-fought battle not only in the courts, but in New York's tumultuous and ever changing legal and political environments.

Navigator: You’ve also been fighting a legal and political battle against government racial discrimination. Can you fill us in on how that’s going?

Bullock: The fight against government-sanctioned racial discrimination is an area where libertarian public interest law has had a dramatic and far-reaching effect. The courts in recent years have made it extremely difficult for the government to engage in discrimination through the use of racial preferences and set-asides in such areas as government contracting and university admissions. The law has been changed in a very profound way. Even in the political arena, the fight against government racial discrimination has been going quite well with, for instance, the passage of Proposition 209 in California. The institute was involved in defending that initiative in the courts.

But even though the law is now quite good in this area, we are seeing massive resistance on the part of many governments and advocacy groups. They desperately seek to avoid compliance with the law. So the institute, along with like-minded organizations, must be, as Jefferson said, eternally vigilant—to make sure we reach the goal of a color-blind Constitution.

Navigator: Where is the next big step in restoring property rights? And how is IJ involved?

Bullock: Property rights have enjoyed something of a renaissance in recent years, with some favorable Supreme Court decisions giving greater protection for property owners. But we still have a long way to go. In the Lucas case, the Supreme Court held that if you can demonstrate a total wipe-out of property value as a result of regulation, then you are entitled to compensation. The next logical frontier will be over losses of value that are quite substantial, but less than a total wipe-out. The courts must answer whether these losses should also be recognized under the Takings Clause.

We are involved in a number of other property-rights issues, including defending the rights of tenants in rental housing to be free from unreasonable searches of their property, and also in restoring protections for individuals whose property is “forfeited” to the government because the property is somehow connected to illegal activity. The use of civil forfeiture by governments has resulted in some of the most egregious violations of property rights in recent memory.

Moreover, we are involved in a case attempting to restore the “public use” requirement of the Takings Clause. In the past, governments could take land through eminent domain only for truly “public” uses, such as building roads, post offices, etc. Now, there is virtually no limit on what can be defined as a “public use,” even blatant transfers of property from one private individual to another. We have a case in New Jersey where we represent small business owners trying to hold onto their property from expropriation by a government redevelopment agency that appears to do the bidding of Donald Trump.

Navigator: You mentioned in your talk that the litigation approach is by its essence an incremental approach. Could you elucidate what it is you can and cannot do?

Bullock: Because the law has strayed so far from its constitutional moorings, we have to operate in a universe where government power is construed quite broadly and individual rights narrowly. Of course, we would like to see the exact opposite, but we have to be careful not to push too far too fast. You cannot go charging into court arguing that most licensing schemes are unconstitutional, or that government should not be involved in any way with education. I agree with both of those positions, but we would be bounced out of court immediately, perhaps with a court sanctioning us for filing a frivolous lawsuit if we pursued such cases right now. Even worse, filing radical lawsuits creates the potential to reinforce bad precedents, making it harder to undo them in the future. As a result, we have to choose our battles wisely, striking a balance between wanting to alter constitutional law fundamentally and having a chance to win. We must undermine “the regulatory welfare state” one carefully selected lawsuit at a time.

Navigator: On a broader issue: What constitutional theory underlies IJ's approach? Since you are trying to get judges to overturn some well-established law, you don't seem to favor judicial restraint.

Bullock: We take a natural-rights approach to the Constitution, based on the original intent of the Framers. Although originalism is generally associated with conservatives, they often ignore the natural-rights basis of the Founding Fathers' philosophy. We believe that the Constitution guarantees a government of limited, enumerated powers in addition to protecting individual rights from government encroachment. In that regard, we believe that the courts must play an active role in limiting the executive and legislative branches of government.

We are, in a sense, judicial “activists” but not of the liberal variety. Liberal activists often seek to vest courts with legislative powers. For instance, they demand that courts order tax increases to alleviate what they perceive as social injustice or they demand recognition of “positive” rights, such as the right to welfare. Of course, this has no basis in our history or in the Constitution and it must be opposed. But the judicial philosophy of conservatives is equally dangerous. Many of them—most notably, former Supreme Court-nominee Robert Bork—would strip courts of their legitimate roles: limiting government to its enumerated authority and protecting individual rights. Indeed, judicial restraint on the part of judges permitted the creation of today's welfare state. The federal government grew far beyond its constitutionally limited role and the courts allowed it to happen. The courts must be a vital part of the balance-of-powers framework that delegates to government limited and carefully defined powers and reserves to the people all rights and powers not expressly delegated.

Navigator: What is the constitutional basis for judicial activism of a pro-individualist variety?

Bullock: James Madison, the primary architect of the Constitution, declared that the courts were to be the “bulwark”" of our liberties. In his argument for the Bill of Rights, Madison envisioned that “individual tribunals of justice” would serve as guardians of our rights, providing, as he put it, an “impenetrable bulwark against every assumption of power in the legislative or executive branches of government inconsistent with those rights.” Alexander Hamilton probably provided the most systematic defense of the courts, declaring in Federalist No. 78 that the essential role of the courts is “to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Of course, the Founders, especially Jefferson, also warned against the dangers inherent in an unelected judiciary, but virtually all of them believed that an independent judiciary is a fundamental mechanism of limiting the power of government.

Navigator: Pro-freedom activism appears to be an increasingly lonely position. New York Times columnist Anthony Lewis doesn't want IJ overturning precedent to re-establish property rights and conservatives don't want the ACLU overturning traditional restrictions on personal behavior. Do you foresee a democratic-versus-individualist realignment in constitutional law, one that transcends the Left-Right distinction?

Bullock: I certainly hope for such a realignment, but the libertarian-individualist approach to the Constitution is still a relatively small movement. For instance, Nadine Strossen of the ACLU has begun to recognize the importance of protecting property rights, but the ACLU itself seems to spend most of its time defending racial preferences and suing private organizations. And while Judge Bork and other conservatives have written some great works on economics, Bork spent half of his last book attacking individualism.

However, I believe the libertarian-individualist movement is growing especially among law students involved in the Federalist Society, a conservative/libertarian group for students and lawyers. We have a training program each summer for law students and, increasingly, the students are receptive to a libertarian, rather than a Borkean, conservative approach to jurisprudence. Moreover, many of these students care passionately about the Constitution and want to incorporate public-interest law into their legal careers. Also, there is some very important scholarly work going on to buttress the arguments we make in the courts.

Navigator: Does IJ have links to historians and legal scholars who are trying to demonstrate that American constitutional law took some major wrong turn in the past?

Bullock: We actively work with a number of different scholars and policy groups who share our principled commitment to defending individual liberty. As I mentioned before, there is a small but growing number of libertarian constitutional scholars. We work very closely with Richard Epstein of the University of Chicago. He co-authored our amicus briefs in the major property-rights cases before the Supreme Court.

Other outstanding scholars in this area include Boston University law professor Randy Barnett, Doug Kmiec of Pepperdine Law School, David Mayer of Capital University Law School, Bernard Siegan of the University of San Diego School of Law, and UCLA law professor Eugene Volokh. Also, Roger Pilon, Bob Levy, and Tim Lynch at the Center for Constitutional Studies of the Cato Institute do fantastic work in making the case for a government of limited, enumerated powers.

Navigator: Could you cite some books and articles that our readers might turn to for instruction in constitutional law?

Bullock: I would suggest Richard Epstein’s Takings: Private Property and the Power of Eminent Domain. This is a path-breaking book that contributed greatly to the current renaissance of interest in private property rights and also provided a constitutional foundation for challenging much of the modern welfare state. You may remember that Senator Joseph Biden of Delaware waved it before Clarence Thomas during his confirmation hearings and essentially dared Thomas to declare that he believed anything in the book. Bernard Siegan’s Economic Liberties and the Constitution and Clint Bolick's Unfinished Business are also important contributions to the scholarly task of restoring constitutional protection for economic liberty.

For articles, I'd say Randy Barnett’s 1995 piece “Getting Normative,” in Constitutional Commentary, Roger Pilon's “Freedom, Responsibility and the Constitution,” in the Notre Dame Law Review, 1993; and David Mayer’s article on Clarence Thomas in the 1996 Capital Law Review.
This interview was conducted for Navigator by IOS editorial director Roger Donway.