If you follow the Supreme Court at all, you’ve likely heard of the Federalist Society.
The group, begun as a discussion society for conservative and libertarian law students, has grown to become the single most important right-leaning legal institution in the country. Its founders have gone on to become The Federalist Society is a conservative and libertarian legal organization. It began in the 1980s with a ragtag group of conservative students who were at the University of Chicago and Yale Law School.
When they got to law school, they sensed a mismatch between the ideas that were becoming politically ascendant nationally — ideas associated with the Reagan Revolution about limited government and deregulation of free markets — and what they were learning in their own elite law schools.
So the Federalist Society really was just an effort to bring conservative and libertarian ideas and conservative and libertarian speakers to elite law school campuses.
The first thing that happens is they hold a big conference in 1982 on federalism — returning power to the states. They invite conservative and libertarian academics that are scattered in law schools all over the country. Robert Bork comes. Antonin Scalia, who’s at that point still a law professor at the University Chicago. Richard Epstein, who’s deeply involved in the Law and Economics movement.
News of this event is publicized, and other students across the country start writing to [the founders of the Federalist Society] and say, “How do we start our own Federalist Society?”
Prominent donors, funders, politicians take notice. [They] start investing in the organization. Beginning in the ’90s, you get the lawyers’ chapters forming all over the country. And it grows from a small student group to over 40,000 lawyers, judges, politicians, conservative media pundits.
Is this a tightly organized group of activists or a loose discussion society?
I’d say it’s both.
On the one hand, it is very decentralized. The office of the Federalist Society doesn’t tightly control what student chapters do, the kind of programming they put on.
But on the other hand, there is a core group of actors that are associated with the Federalist Society. These are the ones who speak and present at national lawyers conventions, have clerked for conservative Supreme Court justices.
And those actors are deeply involved in what I would consider to be the power aspects of the Federalist Society — identifying and credentialing conservative legal talent, working behind the scenes and with Republican administrations to try to place those individuals into positions of power where they can have real impact on law and policy.
And so as I show in my book, Ideas With Consequences, the group that is actively involved in shaping policy is still a fairly tight-knit group. We’re talking about maybe in the hundreds of conservative and libertarian lawyers who are the real movers and shakers on the policy side.
So thinking about policy outcomes — and I realize it’s hard to suss out the exact causation with things like this — what are some things about American life in the 2010s that are different than they would be absent the Federalist Society?
The most visible impact of Federalist Society has had on American life is through appointments to the Supreme Court.
Every administration has a network that they turn to when they’re looking to identify potential judicial candidates. What’s happened, though, is that on the right, the Federalist Society has a monopoly on that process.
You now have a five-justice majority on the Supreme Court, all of whom are [connected to] the Federalist Society: Chief Justice John Roberts, Samuel Alito, Clarence Thomas — who has been called by Federalist Society members the closest thing to a pure Federalist Society judge — and, of course, Trump’s appointments, Neil Gorsuch and Brett Kavanaugh.
Is there a specific example where the society worked as a gatekeeper?
The example that I like to give is George W. Bush’s nomination of Harriet Miers to the Supreme Court vacancy left by Sandra Day O’Connor.
Prior to the rise of the Federalist Society, conservatives didn’t really know how to identify what would be a good conservative judge. You have Nixon, who has a number of appointments to the Supreme Court, but they’re all over the map. He’s focusing on things like geography, and many of the justices he ends up nominating experience what conservatives would call the “Greenhouse effect,” or judicial drift.
Why the “Greenhouse effect”?
It’s actually after Linda Greenhouse, who was a New York Times reporter who covered the Supreme Court. The conservatives had this theory that they would go out and find “good conservative judges.” But once those “good conservative judges” came to Washington, they would be bombarded by liberal media and the liberal establishment, and they would want to please those people.
And so they would then start drifting to the left, and writing opinions that they thought would please Linda Greenhouse and please the Georgetown liberal set.
But [back to] Harriet Miers.
[She] is nominated because she’s a close family friend of the Bush family. She has very little judicial record. She’s not known at all to the Federalist Society. She hasn’t been at meetings.
As some of my interviewees said, “We need to know you. We need to know that you’ve been at meetings, gripping and grinning, and we didn’t know Harriet.”
And that hurt her.
And the way that it hurt her — as soon as she was nominated, many of these sort of more vocal Federalist Society types rebelled against it and published op-eds. And so they made enough noise that George W. Bush actually withdrew Miers from consideration and nominated Samuel Alito, [who] is one of these Federalist Society mainstay types who comes up through the organization, works in the Reagan Justice Department alongside many of the founders, and is very much a known commodity to the Federalist Society.
You have to look forward and think about abortion rights. Harriet Miers is selected to replace Sandra Day O’Connor. O’Connor is of course a Reagan nominee, but she’s the nominee that didn’t overturn Roe v. Wade.
Harriet Miers — we don’t know anything about her record. But she might have been another O’Connor. We know everything about where Alito stands on the right to choose an abortion. And given the opportunity, every time it’s come up, he would vote to overturn Roe v. Wade. He believes it’s constitutionally ungrounded. So that’s one area where I think it’s been hugely consequential.
Since this interview was part of our season on how philanthropists shape the world around us, often in undemocratic ways, we were also interested in the funding that the Federalist Society receives.
We asked Hollis-Brusky about the difference that consistent foundation funding has made in the Federalist Society’s growth and influence.
The money enables them to expand. It enables them to hire someone like Leonard Leo, who is the vice president.
Ideas can have consequences, but policy is people. So how do you get the people into positions of power? That’s been the role that Leo’s played in the Federalist Society.
And you can’t just bring in people like Leo on a volunteer basis. Being able to to fund his salary, to finance the national office, to put on two huge events: the National Lawyers Convention, which is like a ball for the who’s who in the conservative legal movement, and a national student convention, which brings students from all over the country together and connects them with one another and with academics and judges.
Where the funding has made the most difference is in the kinds of events that you see in the law schools. Students tell me and faculty tell me, no matter what side of the political spectrum they come from, they’ll always attend the Federal Society events because they have the best food and the best alcohol.
I have more substantive questions, but I have to ask you about the food. How good is this food?
Particularly with the law students, if you compare it to other organizations that are less well-funded, less resourced… they’re going to have an open bar. They’re going to have better wine. Their events have more of the trappings of power.
Have you ever had a student come to you and be like, “I don’t know. I’m trying to decide what I’m going to do with my career and [the Federalist Society] has really good food.”
It’s more than just they had a better chicken parmesan than the ACLU. It’s more about the complete image.
I’ll give you a few examples of what I mean by that.
I met with a group of former Federalist Society student chapter presidents and they were talking about being invited to the National Lawyers Convention. The way in which they talked about meeting people like Ted Olson and Clarence Thomas and Richard Epstein and Alex Kozinski … they described them as the Mick Jaggers of the Federalist Society.
These law students get the opportunity to interact with these luminaries.
The second story was before Ted Olson defected and started supporting gay marriage. He was also the lawyer who argued Bush v. Gore and Citizens United, so he was very much a stalwart of the Federalist Society network.
He had a barbecue every year. And these students would talk to me about being invited to Ted Olson’s barbecue and how it was, like, the coolest thing they could possibly imagine. Clarence Thomas is walking around in a Hawaiian button-down shirt smiling and chatting everyone up.
These are the kinds of things that I think the Federalist Society has been effective at using its funding to give young students this window into the world of conservative power.
Have you been to these [events]?
When I was doing the research for the book in 2008, I went to a variety of student events, but also lawyers events.
I went to a book signing with Scalia, which was fascinating.
I’m in this room at the Hyatt in Washington, DC, and Scalia has written a book about legal reasoning and argument. He’s giving his spiel and I look around and I’m surrounded by 20-something white males in their best suits with their ties and they’re hanging on every word he says.
Then there’s a Q&A. Someone asked Scalia what his favorite opinion was. And he said, “Well, I don’t know what my favorite opinion, but I’ll tell you my favorite dissent.”
And he describes his lone dissent in this case Morrison v. Olson, which is kind of a nuts-and-bolts case. It’s not one of the sexy civil liberties cases. It’s about separation of powers.
He begins to recite his dissent, and all of a sudden, the entire room, the volume wells up and all of these young men are word for word repeating along with Scalia his dissent in Morrison v. Olson [arguing that independent counsels are unconstitutional].
If felt to me like if I ever needed sort of a visual or, you know, evidence of the influence that the Federalist Society and Scalia has had on these young, impressionable conservative law students, here it is.
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