The paranoid style in the New York Times Magazine

The Volokh Conspiracy en masse — and Orin Kerr in particular — is going to town on Jeffrey Rosen’s New York Times Magazine cover story on the libertarian cabal that allegedly threatens the judiciary (you gotta love the sinister photographs that accompany the piece). This Kerr post in particular triggered a strong sense of déjà vu:

In my view, the problem with Rosen’s essay is that it tries to portray the decades-old writings of a small number of scholars and activists as an existing and influential “movement.” I don’t think the evidence adds up. The handful of scholars and activists that are supposed to make up this alleged movement are pretty far removed from the set of players in the Bush Administration that are actually setting policy and selecting judges these days. Maybe the Reagan Justice Department was enthralled with the writings of Richard Epstein; the Bush 43 Justice Department isn’t.

As one (of many) who has been on the receiving end of a Richard Epstein rant about the ills of the Bush administration, let me just reaffirm the fact that Epstein is hardly a trusted confidant of this president. The reason for the déjà vu was that there is a strong parallel between this meme and the hysteria that gripped many in 2003 about the Straussian cabal that was allegedly running U.S. foreign policy during the first term of the Bush administration. As I wrote in TNR online back then:

The notion that such a conspiracy exists rests on the belief that the administration’s foreign policy principals–Donald Rumsfeld, Condoleezza Rice, Colin Powell, Dick Cheney, and Bush himself–have somehow been duped by the neoconservatives into acting in a manner contrary to their beliefs. But while critics have never lacked for accusations against these officials, being weak-willed is not among them. In the end, it’s far more likely that Bush is exploiting the neoconservatives’ ideological arsenal to advance his preferred set of policies than vice versa.

If there is any link between the Bush administration and libertarian judicial theory, I suspect it’s of akin to the bolded sentence of the paragraph. And it’s worth thinking about how the neocons are doing now (see Bolton, John). This administration on the whole uses ideas more often (though not always) as hooks for policies they prefer for material or political reasons rather than as a guiding star for the future. In other words, they’re like every other administration that ever occupied the White House. So why the return to conspiracy theories? I’ll quote again from the master, Richard Hostadter:

Perhaps the central situation conducive to the diffusion of the paranoid tendency is a confrontation of opposed interests which are (or are felt to be) totally irreconcilable, and thus by nature not susceptible to the normal political processes of bargain and compromise. The situation becomes worse when the representatives of a particular social interest–perhaps because of the very unrealistic and unrealizable nature of its demands–are shut out of the political process. Having no access to political bargaining or the making of decisions, they find their original conception that the world of power is sinister and malicious fully confirmed. They see only the consequences of power–and this through distorting lenses–and have no chance to observe its actual machinery (emphasis added).