It helps to recall a moment when the assault on the administrative state was being waged by the left, not the right. Throughout the long 1970s, left-wing activists and liberal public interest lawyers conducted an offensive campaign to occupy and transform the administrative state from the margins. Informed by the minority politics of the New Left, these activists were troubled by the narrowing of the New Deal’s initial promise: federal agencies established to monitor big business had become mere enablers of the Cold War industrial complex, fully complicit in the destruction of the environment; welfare departments across the country had imported the racist practices of the South to exclude and police the black urban poor. To counter these trends, New Left activists adopted a strategy of working “in and against” the state: that is, they sought to expand the social welfare and social protectionist horizons of the state while simultaneously weakening its powers of discipline over the poor. The liberal wing of this movement looked to the courts as a means of forcing the hand of government administrators: public interest lawyers won landmark rulings in the area of welfare and environmental law, often invoking an exalted vision of constitutional rights to buttress their claims. To their left, activists in the welfare rights and black justice movement had a more pragmatic, agonistic understanding of the power of law and remained skeptical of the cozy relationship between public interest lawyers and elite donors. In either case, their combined efforts succeeded in profoundly reshaping the scope of administrative action, forcing the state to assume new responsibilities vis-à-vis the environment, everyday consumers, the welfare poor, and racial minorities.
This history helps to clarify something about the right-wing legal movement that is routinely occluded from its own self-narration. As noted by political scientist Steven Teles, it was the left’s assault on the post–New Deal administrative state that spurred legal conservatives into action in the first place. While right-wing revisionism treats the administrative state and “wokeism” as one and the same, a closer zoom reveals a moment when the left was leading the struggle to occupy and transform government bureaucracy. The New Left treated the administrative state as a combat zone, not a neutral terrain of democratic arbitration. For a time, it managed to move the distributional battle front inside the state. It is this incursion that legal counterrevolutionaries have been fighting ever since, even when any active opponent has long since disappeared.