Federalist Society

See also: Lochner era
The **Federalist Society for Law and Public Policy Studies**, most frequently called the **Federalist Society**, is an organization of conservatives and libertarians that advocates for a textualist and originalist interpretation of the United States Constitution. Founded in 1982, it is one of the nation's most influential legal organizations.

## Overview

In January 2019, *The Washington Post Magazine* wrote that the Federalist Society had reached an "unprecedented peak of power and influence." Of the nine members of the Supreme Court of the United States, five (Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, and Samuel Alito) are current or former members of the organization. *Politico Magazine* wrote that the Federalist Society "has become one of the most influential legal organizations in history—not only shaping law students' thinking but changing American society itself by deliberately, diligently shifting the country's judiciary to the right."

The organization, whose ideals include "checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning", plays a central role in networking and mentoring young conservative lawyers. According to Amanda Hollis-Brusky, the author of *Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution*, the Federalist Society "has evolved into the *de facto* gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents." According to William & Mary Law School professor Neil Devins and Ohio State University professor Lawrence Baum, the administrations of Ronald Reagan and George W. Bush "aimed to nominate conservative judges, and membership in the Federalist Society was a proxy for adherence to conservative ideology." The Federalist Society has played a key role in suggesting judicial nominees to President Donald Trump; it vetted President Trump's list of potential U.S. Supreme Court nominees and, as of January 2019, 25 out of 30 of President Trump's appellate court nominees were current or former members of the society.

The society is a membership organization that features a student division, a lawyers division, and a faculty division. The society currently has chapters at more than 200 United States law schools. The lawyers division comprises more than 70,000 practicing attorneys (organized as "lawyers chapters" and "practice groups" within the division) in ninety cities. The society is headquartered in Washington, D.C. Through speaking events, lectures, and other activities, it provides a forum for legal experts of opposing views to interact with members of the legal profession, the judiciary, and the legal academy.

## Founding

The society was started in 1982 by students at Yale Law School, Harvard Law School, and the University of Chicago Law School. The Federalist Society began as a student organization that challenged what its founding members perceived as the orthodox American liberal ideology found in most law schools. The group's first activity was a three-day symposium titled "A Symposium on Federalism: Legal and Political Ramifications" held at Yale in April 1982. The symposium, which was attended by 200 people, was organized by Steven G. Calabresi, Lee Liberman Otis, and David M. McIntosh. Speakers included Antonin Scalia, Robert Bork, and Theodore Olson. In 2018, *Politico Magazine* wrote that "it is no exaggeration to suggest that it was perhaps the most effective student conference ever—a blueprint, in retrospect, for how to marry youthful enthusiasm with intellectual oomph to achieve far-reaching results." The society states that it "is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

## Background

The society looks to Federalist Paper Number 78 for an articulation of the virtue of judicial restraint, as written by Alexander Hamilton: "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature... The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."

Its logo is a silhouette of former president and constitution author, James Madison, who co-wrote *The Federalist Papers*. Commissioner Paul S. Atkins of the U.S. Securities and Exchange Commission considered society members "the heirs of James Madison's legacy" in a speech he gave in January 2008 to its lawyers chapter in Dallas, Texas. Madison is generally credited as the father of the constitution and became the fourth president of the United States.

The society's name is said to have been based on the eighteenth-century Federalist Party; however, James Madison associated with Thomas Jefferson and the Democratic-Republican Party in opposition to Federalist Party policies borne from a loose interpretation of the Commerce Clause. The society's views are more closely associated with the general meaning of Federalism (particularly the New Federalism) and the content of the *Federalist Papers* than with the later Federalist Party.

The society's initial 1982 conference was funded, at a cost of $25,000, by the Institute for Educational Affairs. Later funding of $5.5 million came from the Olin Foundation. Other early donors included the Scaife Foundation and the Koch family foundations. Donors to the Federalist Society have included Google, Chevron, Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family. By 2017, the Federalist Society had $20 million in annual revenue.

The society holds a national lawyers convention each year in Washington, D.C. It is one of the highest profile conservative legal events of the year. Speakers have included former ACLU head Nadine Strossen, business executive and 2016 Republican presidential candidate Carly Fiorina, former BB&T chairman John Allison, former Attorney General Michael Mukasey, U.S. Senator Mike Lee, and White House Counsel under President Barack Obama Neil Eggleston. The Federalist Society invites to its events "capable liberal advocates to try to rebut conservative perspectives."

The *Harvard Journal of Law and Public Policy* is the Federalist Society's official journal, and a subscription is provided to members.

The Federalist Society is a client of the public relations firm Creative Response Concepts.

## Methods and influence

The Federalist Society has 200 student chapters at law schools across the United States as well as lawyers chapters in 90 U.S. cities. The Federalist Society provides its 70,000 members with "intellectual sparring and professional grooming." David Montgomery, writing in *The Washington Post Magazine*, said that each individual member of the group is "akin to an excited synapse in a sprawling hive mind with no one actually in charge." Montgomery called the Federalist Society "a remarkably successful example of what political scientists call a 'political epistemic community'," echoing Amanda Hollis-Brusky, who described the Federalist Society as "an interconnected network of experts with policy-relevant knowledge who share certain beliefs and work to actively transmit and translate those beliefs into policy." Former Federalist Society executive vice president Leonard Leo has said "he endorses the network theory of the society," saying, "It's less about who gets what job and more about building a community that can be self-perpetuating and self-sustaining and self-driving."

Steven Teles, a professor of political science at Johns Hopkins University and the author of *The Rise of the Conservative Legal Movement: The Battle for Control of the Law*, wrote that the Federalist Society's influence on the judicial selection process may not be the group's most important impact. Instead, the "supply-and-demand relationship between the judges and the network" may be paramount, with judges needing "scholarship and arguments extending Federalist principles into new areas. Where new legal theories depart from the status quo, they need them to be vetted and legitimized through public debate. They require targeted cases raising questions that provide an opening to move the law. Without professors and lawyers in the network filling that demand, you're not going to maximize what you got through the electoral process."

*The Washington Post Magazine* wrote that the Federalist Society "provides the enduring climate within which storms on the right come and go" and that "Much of the Federalist Society's influence comes not from its very public Washington victories but from its behind-the-scenes, grass-roots ability to shift the law at the idea level, even the cultural level." The Federalist Society lobbies for no particular policies, it does not sign amicus briefs, and it does not represent clients in cases. Amanda Hollis-Brusky, political science professor at Pomona College, and Calvin TerBeek, Ph.D. candidate in political science at the University of Chicago, dispute that the Federalist Society is non-partisan, pointing to documents written by the Federalist Society to donors in 1984 where the organization states that one of its missions is pushing conservative positions. In rebuttal to Hollis-Brusky and TerBeek, former Solicitor General Ted Olson also wrote in *Politico Magazine* pointing out that in 37 years of its existence never "has the Federalist Society filed a lawsuit or brief in any litigation, and never once during that period has it passed any resolution advocating for or against any legal issue."

In 2018, *Politico Magazine* wrote that "the organization had markedly and undeniably changed the nature of the judiciary." The Federalist Society has been described as influential during the presidencies of George H.W. Bush, George W. Bush, and Donald Trump.

The American Constitution Society, founded in 2001, was explicitly started as a liberal analogue to the Federalist Society.

In January, 2020, the Committee on Codes of Conduct of the Judicial Conference of the United States circulated Proposed Advisory Opinion No. 117 which declared that:

> Official affiliation with [the Federalist Society or the American Constitution Society] could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.
>
>
>

The opinion also clarifies that the proposed restriction is limited to membership, explaining that judges would be allowed to participate in events hosted by organizations such as the Federalist Society and ACS through speaking engagements, panel discussions, attendance and the like, since these activities could not be reasonably perceived as indicating endorsement of an organization's views or positions. With this, the proposed opinion brings some clarity to the confusion that had been created by Advisory Opinion No. 116, released in February, 2019, which had been interpreted by one former judge as making Federalist Society events a “no-go zone for federal judges,” the Federalist Society according to his interpretation having been ruled to be "the epitome of a now-prohibited organization," while another judge arrived at a starkly contrary interpretation, and with other observers concluding that mere attendance by judges at such events had been made an almost certain ethical violation. The proposed advisory opinion will have a 120-day comment stage, which will end May 20, 2020. It has been suggested that ethics rules of this type could be vulnerable to a charge that they violate the judge's first amendment rights, pointing to the case of Republican Party of Minnesota v. White, in which the Supreme Court held that the government couldn't limit certain types of speech by candidates for state judicial elections simply because that speech might create an appearance of "bias."

The proposed advisory opinion would bar membership in the Federalist Society or the American Constitution Society for members of the judiciary, but continue to allow membership in the American Bar Association (ABA). Opponents of the proposal also argue that the ABA does lobby for often liberal positions and files amicus briefs advocating specific positions, with Ed Whelan stating "In short, the ABA has a consistent and longstanding practice of *advocating liberal causes*. If a line is to be drawn between the Federalist Society and the ABA, it is the ABA that should be deemed to be on the wrong side of the line." Additionally, opponents of the proposal point out that the Federalist Society does "not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service", nor does it litigate or file amicus briefs. They assert that the Federalist Society’s "main purpose is to sponsor fair, serious, and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is rather than what they wish it to be." The Federalist Society claims that in pursuance of this goal of fair and open debate at least 35 to 40 percent of the speakers, panelists and moderators at their events held between 1982 and 2011 would *not* identify as right of center, and that this group includes all sitting Democratic appointees to the Supreme Court at some point in their careers.

## Judicial philosophy

According to *The Washington Post Magazine*, "Many individual Federalists are political and ideological warriors, though never in the name of the Federalist Society. Rather, society events provide the proving ground where they hone their arguments, seize a chance to shine and come to the attention of mentors higher up in the political-legal hierarchy. In that sense, the Federalist Society is a talent network and placement agency as well."

A 2008 study found that Federalist Society members appointed by Republican administrations to the U.S. Courts of Appeals had more conservative voting records than non-members. Critics say the organization favors judicial activism, in particular on social issues. Many members of the Federalist Society favor overturning *Roe v. Wade*, the Supreme Court ruling that permits abortion. The organization tends to favor judges who take conservative stances on abortion rights and other social issues. Members of the Federalist Society have presented oral arguments in every single abortion case that has been before the Supreme Court since 1992.

According to the authors of *Building Coalitions, Making Policy: The Politics of the Clinton, Bush, and Obama Presidencies* (2012), "Federalist Society members declaim the notion that they are united around a particular philosophy," although many members have been associated with textualist or originalist methods of constitutional interpretation. Judicial restraint tends to align with conservative views on abortion and LGBT rights, while "Critics point out that conservatives are typically not so intent on following 'original meaning' in areas such as affirmative action, executive powers, free speech and federalism." Liberals have questioned "how suspiciously convenient it is that the jurisprudence advocated by society members so often yields conservative results." Leonard Leo, former executive vice president of the Federalist Society, "disputes the notion that the Constitution contains either conservative or progressive values, and he denies that originalism is rigged to reach conservative and libertarian results." Leonard has said "You're practicing originalism appropriately when you're doing so without looking behind the curtain and trying to predetermine results" and that "There are liberals who work really hard at trying to develop a neutral, originalist approach to interpretation...The fact that people may come out differently occasionally — that's okay. Half the battle is just agreeing that it is essential." Increasingly, "A number of liberal scholars have applied themselves to the task of showing how, in fact, originalist approaches can yield progressive results. As this train of thought has flowed out of the academy, liberal originalist logic is, more and more, showing up in legal briefs and even in Supreme Court dissents."

## Legal activities of members

Members of the Federalist Society have opposed regulation of private property and private businesses, and have argued that specific regulations must be enacted by legislatures rather than courts or executives that interpret existing statutes and powers.

Members of the Federalist Society have argued that courts should not take race into account when making decisions. For example, members of the group have argued that civil rights cases involving racially discriminatory policies should not consider race, but rather the individuals involved. Federalist Society members were extensively involved with the *Parents Involved in Community Schools v. Seattle School District No. 1* ruling where the Supreme Court struck down voluntary desegregation plans in several jurisdictions. The authors of *The Federalist Society: How Conservatives Took the Law Back from Liberals* write that "Conservatives believe, however, that it is not appropriate for the government to promote racial balance. The essence of the conservative position is that there is no legal difference between considering race or gender for purposes of exclusion and considering race or gender for purposes of inclusion. They argue that both are harmful and make racial problems worse. On the other hand, many civil rights advocates believe that because our history has been one of the systematic exclusion of racial minorities and women from social, political, and economic institutions and from positions of power and influence, the conservative view leads to the continuation of exclusion and retards society’s ability to move toward inclusion."

Members of the Federalist Society have forcefully argued against regulations on guns. Members hold that the Second Amendment protects the rights of individuals to guns, as opposed to being a collective right to arms. At the time of the Federalist Society's creation and since the 19th century, the Supreme Court and academics had held a more restrictive view of gun rights. The Federalist Society was influential in shifting legal views on gun rights, culminating in the Supreme Court ruling *District of Columbia v. Heller* which struck down gun regulations in the District of Columbia that required guns to be kept "unloaded and disassembled or bound by a trigger lock".

The Federalist Society had a significant influence on the *Citizens United* Supreme Court ruling which weakened regulations on campaign finance by finding that the free speech clause of the First Amendment to the Constitution prohibits the government from restricting independent expenditures for communications by nonprofit corporations, for-profit corporations, labor unions, and other associations.

### *King v. Burwell*

The ideas of the Federalist Society were "at the intellectual heart" of *King v. Burwell*, which challenged the constitutionality of the Affordable Care Act (ACA), with members of the group playing a "mostly behind-the-scenes part in King — and in many of the most significant conservative legal victories of the last 30 years." In her book on the history of the Federalist Society, political scientist Amanda Hollis-Brusky writes that "Federalist Society members had been invested in the litigation efforts against the ACA well before the Act was signed into law—before there was even anything concrete to litigate against."

Libertarian law professor Randy Barnett attended his first Federalist Society event in 1986. He was reluctant to attend the event, worried the group would be a "closed conservative sect". Instead, he found the group "open to testing a diversity of ideas". He switched from contracts to constitutional law and became an expert in the Ninth Amendment to the United States Constitution. By the time the ACA was passed in 2010, Barnett had "an arsenal of commerce-based arguments ready" to argue against the legality of the ACA. Barnett became a "leading voice of the growing libertarian wing of the Federalist Society, and he became one of the architects of constitutional claims at the core of lawsuits against the health-care plan." His participation in the legal challenge to the ACA was initiated at the Federalist Society's 2009 national convention. He co-authored a 16-page legal memorandum "that outlined a constitutional case against the health-care measure." The memorandum "became a source of talking points during congressional debate and laid the framework for subsequent court challenges; Barnett represented one of the plaintiffs." Barnett said the Federalist Society "involves people, gets them interested, and they oftentimes will do something about that."

## George W. Bush administration

Legal positions in the Bush administration were also overwhelmingly staffed with Federalist Society members. Approximately half of Bush's nominees for appellate court judgeships were Federalist Society members. The Bush administration was harshly criticized for the decision to nominate Harriet Miers to the Supreme Court, with conservative critics arguing that she lacked a consistently conservative track record, did not have Federalist Society "credentials" and for her purported ties to the American Bar Association (which conservatives considered to be liberal). After conservative outcry, Miers withdrew the nomination. The Bush administration went on to nominate Samuel Alito, a Federalist Society member with a consistent conservative track record who was active in Federalist Society circles, to the Supreme Court.

Members of the society helped to encourage President George W. Bush's decision to terminate a nearly half-century-old practice of giving the American Bar Association confidential early access to judicial nominees, allowing the ABA to rate nominee's qualifications for office before the nominations were announced. Since the administration of President Dwight D. Eisenhower, the American Bar Association provided the service to presidents of both parties and the nation by vetting the qualifications of those under consideration for lifetime appointment to the federal judiciary before any other group. The society alleged that the bar association showed a liberal bias in its recommendations. Examples given included that while former Supreme Court clerks nominated to the Court of Appeals by Democrats had an average rating of slightly below "well qualified", similar Republican nominees were rated on average as only "qualified/well qualified." In addition the bar association gave Ronald Reagan's judicial nominees Richard Posner and Frank H. Easterbrook its lowest possible ratings of "qualified/not qualified", and Judges Posner and Easterbrook have gone on to become the two most highly cited judges in the federal appellate judiciary.

## Donald Trump administration

According to *Politico Magazine*, "Trump is president for a long list of reasons, of course, but near the top of that list is the imprimatur the Federalist Society granted him. He almost certainly couldn't have gotten what he wanted without the Federalists. And they almost certainly couldn't have gotten what they wanted without him."

The Federalist Society has been influential in the Trump administration, hand-selecting Supreme Court Justice Neil Gorsuch and recruiting a slate of conservative judges to fill vacancies throughout the federal judiciary. The society helped to assemble the list of 21 people from which Donald Trump said he would choose a nominee to replace Antonin Scalia on the U.S. Supreme Court. Nine of the 21 individuals spoke at the society's annual convention in late November 2016, while nearly all of the others were in attendance. Federalist Society members have generally chosen not to criticize President Donald Trump and *Politico* described the Federalist Society membership as "elite, conservative lawyers who have generally chosen to give Trump a pass on his breaches of long-cherished legal norms and traditions in exchange for the gift of Supreme Court Justice Neil Gorsuch." Former Federalist Society executive vice president Leonard Leo said: "What President Trump has done with judicial selection and appointments is probably at the very center of his legacy, and may well be his greatest accomplishments thus far."

In May 2018, the Federalist Society hosted a phone call entitled "examining the legality of the Mueller Investigation", where one of the featured speakers has argued that Special Counsel Robert Mueller's investigation into Russian interference in the 2016 election is unconstitutional.

## Notable members

Notable members of the society have included:

* Chief Justice of the United States John Roberts (disputed)
* Former United States Supreme Court Justice Antonin Scalia (who served as the original faculty advisor to the organization)
* Supreme Court Justice Samuel Alito
* Supreme Court Justice Clarence Thomas
* Supreme Court Justice Neil Gorsuch
* Supreme Court Justice Brett Kavanaugh
* United States Court of Appeals Judge (D.C. Cir.) Thomas Griffith
* Alex Kozinski, former Chief Judge of the United States Court of Appeals for the Ninth Circuit
* United States Court of Appeals Judge (5th Cir.) Edith Brown Clement
* Former United States Court of Appeals Judge (D.C. Cir.) Robert Bork
* Professor Michael W. McConnell at Stanford Law School and former United States Court of Appeals Judge (10th Cir.)
* Former United States Attorney General Edwin Meese
* Former U.S. Attorney General John Ashcroft
* Former United States Assistant Attorney General Peter Keisler, a co-founder of the Federalist Society
* Former United States Solicitor General Theodore Olson
* Former United States Solicitor General Paul Clement
* Former President Pro Tempore of the U.S. Senate Orrin Hatch
* Senator Ted Cruz, Republican Senator of Texas
* Senator Josh Hawley, Republican Senator of Missouri
* Senator Todd Young, Republican Senator of Indiana
* Former U.S. Senator and Secretary of Energy Spencer Abraham
* Former United States Ambassador to the European Union C. Boyden Gray
* Former United States Secretary of the Interior Gale Norton
* Michael Chertoff, former United States Secretary of Homeland Security
* Former general counsel of the Office of Management and Budget and of the Department of Homeland Security Philip Perry
* Former Texas State Representative and Dallas lawyer Bill Keffer
* Former President of Baylor University and former independent counsel Kenneth Starr
* Former Columbia Law School Dean David Schizer
* Professor Richard Epstein of the New York University School of Law
* Professor Randy Barnett of Georgetown University Law Center
* Roger Pilon, Director of Constitutional Studies at the Cato Institute
* 28th United States Secretary of Labor Eugene Scalia (son of Justice Antonin Scalia)

## Notes

1. ↑ Roberts was at one point reported to have been a member of the society, but Roberts's membership status was never definitively established. Deputy White House press secretary Dana Perino said Roberts "has no recollection of ever being a member." Following the report, the *Washington Post* located the Federalist Society Lawyers Division Leadership Directory, 1997–1998, which listed Roberts as a member of the Washington chapter steering committee; however, membership in the society is not a necessary condition for being listed in its leadership directory.