Podcast Summary:

City Journal Audio – "Who We Are: The Conservative Legal Movement"
Host: Raphael Mangual
Guests: Jim Copeland, Ilya Shapiro
Date: January 14, 2026

Episode Overview

This episode provides a deep dive into the conservative legal movement in the United States, dissecting its origins, intellectual underpinnings, major milestones, and the evolving role of institutions like the Manhattan Institute. Host Raphael Mangual leads an engaging conversation with Jim Copeland and Ilya Shapiro, both veteran legal minds with intimate knowledge of conservative legal thought, about the formation, evolution, and current debates within the movement. The discussion ranges from the emergence of originalism and textualism, to pivotal Supreme Court battles, to contemporary controversies regarding race, affirmative action, and the purpose of legal rules in shaping society.

Key Discussion Points & Insights

1. Defining the Conservative Legal Movement

• Historical Roots

  • The movement's seeds were planted before the official founding of the Federalist Society (1982) as a reaction to trends such as the Warren Court's expansive decisions and judicial activism.

    • "Some of this was a reaction against trends in the law. In Ilya's world of constitutional law, that was sort of the vast expansion of judicial authority, sometimes without clear textual rudders in the Constitution." — Jim Copeland [01:16]

  • 1968 marked a pivot point with Nixon running against the Warren Court's perceived judicial activism, calling for restraint and law and order.

    • "Nixon came in in the late 60s and campaigned against all of this, including saying this Warren court, they're activists. We need to have law and order. So it spawned as kind of this conservative legal movement." — Ilya Shapiro [02:07]

2. Judicial Activism vs. Restraint: Textualism & Originalism

• Key Arguments

  • The conservative legal movement positions itself against "making up" constitutional law via vague doctrines (“penumbras and emanations”).

    • "It wasn't going to be penumbras and emanations of the Constitution, inventing broad new theories without a textual basis or any historical foundation." — Jim Copeland [03:39]

  • Originalism evolved from a focus on the Founders’ intent to the meaning of the text as understood at the time of enactment.

    • "Scalia built on that and said no, I don't care what James Madison has to say about video games. I care what the words on the text say and not what they say now, what they meant when they were enacted." — Ilya Shapiro [07:54]

  • Restraint vs. activism reframed: The right approach is simply to interpret what the law says.

    • "I don't think you should be activist or restrained. You should say what the law is, and then we can debate whether you get it right or not." — Ilya Shapiro [03:24]

3. The Manhattan Institute’s Legal Identity & Focus Areas

• Origins and Tort Reform Legacy

  • The MI’s early legal work centered around tort reform and regulatory policies—areas intimately tied to free-market philosophy.
    • "The point's not that we support corporate negligence and malfeasance. The point is it's part and parcel of our belief in free markets." — Jim Copeland [15:19]
  • The "tort tax" described the costly burden of expanded liability rules on the economy.
    • "Peter called this the tort tax." — Jim Copeland [17:11]

• Evolving Into Constitutional Debates

  • With additions like Ilya Shapiro, MI has recently entered more direct participation in constitutional law debates, such as Supreme Court amicus briefs and race-based litigations.

4. Race, Law, and Conservative Critiques

• Colorblind Meritocracy vs. Quotas

  • The group discusses the value of treating individuals on merit, not race, and the hidden costs of affirmative action and disparate impact liability.

    • "In general, if you have a growth of a web of inefficient rules ... that's no good. And as Richard Epstein wrote, you need simple rules for a complex world." — Ilya Shapiro [16:27]

  • They address critiques that neutral rules ignore histories of discrimination, raising the enduring debate between equality of opportunity and equality of outcome.

    • "The fair characterization of the counterargument ... you can have all these neutral equality rules ... but you've got unequal outcomes out there and you can't just ignore away centuries of slavery." — Jim Copeland [21:17]

• Mismatch Theory in Affirmative Action

  • They reference research showing negative effects of affirmative action on intended beneficiaries due to "mismatch" (students admitted under preferences struggling or failing at institutions, thus reinforcing stereotypes and harming outcomes).
    • "There, there are black doctors and scientists that we would have today in the workforce if we weren't mismatching them into the block school." — Jim Copeland [26:55]

5. The Federalist Society’s Transformative Role

• Intellectual Home and National Network

  • The Federalist Society is credited with nourishing the conservative legal ecosystem by connecting students with practitioners and importing outside ideas into liberal law school environments.

    • "If you only had one or two faculty members who were right of center there, you could tap into the whole national network." — Jim Copeland [37:25]

  • The Society’s non-partisan, debate-driven model fosters internal intellectual ferment without promoting explicit policy positions.

    • "It doesn't take positions. ... It's a convening and a fermenting of, of intellectual development and then professional networking." — Ilya Shapiro [36:45]

6. Pivotal Supreme Court Nominations and Political Shifts

• Confirmation Wars & Judicial Appointments

  • The failed Bork nomination is recalled as a turning point—politicizing confirmations and shaping modern precedent for nominee reticence (the "nominee precedent").

    • "Bork was different because there were personal attacks, ... he appeared like a professor wanting to win arguments against the senators rather than their votes." — Ilya Shapiro [44:48]

  • Recent years’ "string of [Republican] wins" (Gorsuch, Kavanaugh, Barrett) dramatically shifted judicial balance.

    • "What a sea change we've had. I mean, the affirmative action precedent's gone. Roe v. Wade, the abortion right precedent's gone ... the courts pulled back on that." — Jim Copeland [44:04]

  • Mitch McConnell’s 2016 hold on the Scalia seat is highlighted as both strategic and historical.

    • "Mitch McConnell, I think, will never get enough credit ... An hour after Scalia's death made the news, he gave the statement ... There will be no hearings, no votes." — Ilya Shapiro [48:58]

7. The Perpetual Culture of Legal Debate

• No Permanent Victories
  • The episode closes on the reality that legal battles are unending and that future reversals are always possible, emphasizing the need for ongoing debate and engagement.
    • "There are no permanent victories when it comes to political questions. These arguments we've been having, they've gone on since the first days with the anti federalists and the Federalists." — Jim Copeland [54:49]
  • The goal is not judicial supremacy but robust, democratic policymaking.
    • "You don't want these unelected nine judges in robes being your grand theorists ... You want your elected officials going in the right direction." — Jim Copeland [53:41]
    • "I would love to make the Supreme Court ignore again, less relevant to our policy discourse ... and then convince the White House, ... Congress to do their jobs." — Ilya Shapiro [53:49]

Notable Quotes & Memorable Moments

• On Judicial Philosophy:
  "I don't think you should be activist or restrained. You should say what the law is, and then we can debate whether you get it right or not." — Ilya Shapiro [03:24]
• On Tort Reform:
  "It's not that there's no place for tort law in the business world, but historically you regulated that through contracts." — Jim Copeland [15:19]
• On Affirmative Action Backlash:
  "If public schools, government schools ... are bad, how do you remedy that? By lowering standards for medical school or having lower sentencing based on race for criminals?" — Ilya Shapiro [23:51]
• On Confirmation History:
  "Bork was different because there were personal attacks ... And then he didn't do himself any favors ... he appeared like a professor wanting to win arguments against the senators rather than their votes." — Ilya Shapiro [44:48]
• On the Federalist Society’s Influence:
  "If you only had one or two faculty members who were right of center there, you could tap into the whole national network." — Jim Copeland [37:25]
• On the Ongoing Debate:
  "There are no permanent victories when it comes to political questions. These arguments ... have gone on since the first days with the anti federalists and the Federalists." — Jim Copeland [54:49]

Important Timestamps

• [01:16]: Copeland explains the historical emergence of the movement.
• [07:54]: Shapiro on the evolution of originalism from "intent" to "public meaning" of constitutional text.
• [13:22]-[15:09]: MI’s early focus on tort reform, "the tort tax," and consequences for business.
• [19:24]-[27:03]: Affirmative action, colorblind meritocracy, and the “mismatch” debate.
• [35:04]-[38:13]: The Federalist Society’s history and impact on conservative legal education.
• [42:15]-[47:14]: Bork nomination, confirmation wars, and identity politics in appointments.
• [48:41]-[50:27]: 2016 election, McConnell’s Supreme Court strategy, and the rise of Gorsuch/Kavanaugh/Barrett.
• [51:59]-[53:55]: The populist/nationalist turn in the movement and the enduring need for policy debate.
• [54:49]: Copeland closes with reflection on the perennial nature of legal-political struggles.

Tone & Language

The dialogue is intellectually rigorous, good-humored, relaxed, and candid, infused with war stories, personal anecdotes, and occasional wit (“I was called a well-known defender of corporate negligence and malfeasance ... That's really untrue because I'm not that well known.” — Copeland, [15:19]). The hosts do not shy away from controversy, offering critical takes on both liberal and conservative missteps, but the discussion is chiefly analytical and policy-focused throughout.

For Listeners New to These Debates

This episode serves as a richly layered primer on American conservative legal thought, with engaging stories and historical context that connect high-level constitutional debate to real-world policy battles. It’s useful both for those seeking to understand the evolution of conservative legal tactics, and for those wondering how institutions like the Manhattan Institute have influenced the legal and policy landscape.