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Peter S. Canellos

‘A Moment of Truth for the Federalist Society’: Politics or Principle?

Mitch McConnell, right, and Donald McGahn address the Kentucky chapters conference of The Federalist Society at the Kentucky State Capitol in Frankfort, Ky., Monday, Oct. 7, 2019. | Timothy D. Easley/AP Photo

When the Federalist Society gathers on Thursday at the Mayflower Hotel for its first national lawyers convention since the Supreme Court’s historic 2021-22 term, one word is likely to stir up a surprising amount of debate, reaction and perhaps even pain.

The word is Dobbs.

The last time the conservative lawyers’ group convened, almost exactly a year ago, the Supreme Court was just three weeks away from hearing the abortion rights case of Dobbs v. Jackson Women’s Health, an event that almost everyone in attendance viewed with hope and anticipation.

After all, skepticism about the right to abortion was part of the impetus for the founding of the society, back in 1982. Popular outrage on the right over Roe v. Wade was what gave the upstart group founded by law students the sustained political support that propelled it to national prominence, connecting high-minded legal theorists to religious voters who had never heard the term originalism. And within the society’s ranks, a belief that Roe was wrongly decided was the glue that held two of the group’s major factions together: It provided common ground between conservative activists hungering to see their views enshrined in law and people who believed simply that unelected judges should leave major decisions to politicians.

Now, though, the Dobbs decision and the newfound legal power that delivered that victory are exposing those internal divisions and testing the group’s commitment to its founding principles.

The first clue that the defeat of Roe, while a universally hoped-for goal, might also prove a mixed blessing for the conservative legal movement came at the 2021 Federalist Society convention.

One of the society’s most prolific members, South Texas College of Law professor Josh Blackman, noticed that of the dozens of panel discussions — on topics including cancel culture and “social activism and corporate leadership” — none addressed the elephant in the room: the pending challenge to abortion rights, and how that could reshape both society and the conservative legal movement.

“You get your white whale and what do you do? What’s the next thing?” said Blackman in an interview a few weeks ago while on his way to Federalist Society talks at three Boston-area law schools. “The answer is: I don’t know.”

There is no shortage of candidates, as conservative legal activists, emboldened by their Supreme Court majority, have honed theories curbing civil rights laws, striking down gun restrictions, overturning the right to same-sex marriage, limiting the powers of the regulatory state and more. Some, like the independent state legislature theory — which rose up after Donald Trump’s objections to the 2020 election and asserts that legislatures should be free of gubernatorial vetoes or state-court oversight in managing federal elections — have direct and almost painfully obvious links to Republican politics.

But while liberals have long seen the Federalist Society as marching in lockstep beside the Republicans, the group’s members have always insisted otherwise. Widespread agreement on the evils of Roe often obscured disagreements on other planks of the conservative agenda.

“The Federalist Society is not an ‘it.’ You have thousands of people with different approaches,” said Blackman. “Are there political people? Absolutely there are. But most academics tend to be libertarians rather than social conservatives.”

Other Federalist Society members, including some prominent academics and office-holders who declined to be quoted, worry the society’s newfound power will cause it to abandon long-held legal principles in favor of political expediency. Only recently has the society confronted a situation in which it is truly in control of the Supreme Court — six of the nine justices are current or former members. Thus, much of its ideological energy over the decades has gone to constructing theories that constrained judges. Now, those same theories — about the limited role of the judiciary, or adhering to longstanding precedents — can be cited to derail conservative ambitions.

"For years the agenda of the Federalist Society has been a movement to limit judicial activism. But now it has power — at least in the Supreme Court — and will the Federalist Society become activist now? It's an interesting debate," said Professor Lawrence Stratton of Waynesburg University, a longstanding society member, recalling anti-activist tracts by famous conservative legal thinkers. “If Robert Bork's book 'The Tempting of America' was the Federalist Society Bible in the '90s, is that still the view? Conservatives have never had this kind of power before."

In “The Tempting of America,” which was published in 1990 and subtitled “The Political Seduction of the Law,” Bork framed the danger presented by Roe v. Wade not in terms of abortion or the 14th Amendment but imbalance of power — turning courts into quasi-legislatures addressing social policy.

Bork wrote of watching protesters on both sides of abortion march past the Capitol en route to the Supreme Court: “So far as they were concerned, for their purposes, the Supreme Court was their branch,” he wrote. Both sides “regard the court as in large part not a legal institution, but a political body."

The Dobbs decision, announced in June, returned that power to politicians — a development of which Bork, who died in 2012, would surely approve. But whether he would encourage conservatives to do the opposite — take power away from politicians on issues from voting rights to campaign finance — is another matter. Debates are heating up. The Federalist Society website records scores of events by local and law-school chapters anticipating a post-Dobbs future, most with titles like “What Comes Next After Dobbs,” which was held at Fordham University on Nov. 1. And unlike last year, this year’s national lawyer conference will have a session on “Dobbs, Roe, Casey and the Rule of Law.”

In Dobbs, conservatives have constructed their own crucible. Now, the agendas of many Federalist Society members will have to pass the test that Roe, in the view of the Dobbs majority, did not — the one that Republican presidents also have invoked in debates over court appointments: whether a judge is interpreting the law or making it.

“This is the moment of truth, to see whether conservative judges and lawyers adhere to the constraining proposition that what judges do is fundamentally different from politics,” said one longtime Federalist Society member and office holder, granted anonymity to discuss sensitive matters. “That’s proved a winning proposition as long as the Federalist Society has been around. But now plenty of outsiders see the courts as a vehicle to achieve policy goals they couldn’t win at the ballot box. That is precisely what most Federalist Society members have been fighting against our entire professional lives.”

A kind of duality is reflected in the Federalist Society’s charter. It refers to itself as “a group of conservatives and libertarians,” as if only too conscious of the important distinctions between the two. It also states among its core values that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

For many of the earliest members of the Federalist Society, this latter sentiment was a rallying cry, and Roe was the emblem of how justice had strayed into social policy. But in the 1980s, even as President Ronald Reagan was giving new force to conservatism in many realms, students who voiced his ideas in elite law schools felt shunned. Older professors of that era had come of age amid the New Deal, remembering FDR’s battles with the “nine old men” of a reactionary Supreme Court, while younger ones saw their views grow out of the triumphs of the Warren Court, starting with Brown v. Board of Education. The legal system, they felt, was and should forever be a vehicle for progress.

The need to push back against a law-school monolith that tolerated no dissenters pervaded early gatherings of conservative law students. In 1982, groups of students from Yale and the University of Chicago staged a formal event to connect with like-minded professors, who felt equally ostracized, and the Federalist Society was born. Chapters quickly began organizing at other law schools.

Georgetown Law School Professor Charles F. Abernathy, a noted progressive and author of the first modern casebook on federal civil rights statutes, said he felt sympathy for conservative students back in the 1980s.

“I really respected our Federalist Society students,” Abernathy said in an interview. “I didn’t share their views but had sympathy for the situation they found themselves in. I always root for the underdog. They were the minority, and they were mistreated by some of our faculty members.”

In the early years, Abernathy recalled, students with an intense “academic-oriented” and “scientific” view of the law were drawn to Federalist Society debates, along with others from backgrounds he dubbed “the minorities of the 1920s,” primarily Irish Americans and Italian Americans. The latter groups “felt they had overcome discrimination but were now facing discrimination again under affirmative action,” he said.

At the time, a liberal theory of the law as embodying historic injustices was gaining steam. Known as Critical Legal Studies, it was the progenitor of today’s critical race theory. Often, campus “crits” were viewed in opposition to Federalist Society members, but Abernathy believes that both groups coalesced around a similar idea: the law was infused with politics. Crits felt the contaminant to be prejudices against disadvantaged groups, while Federalists believed it to be trendy liberal dogma. Each preached the ideal of a neutral set of principles, cleansed of biases, but felt little compunction about pursuing agendas of their own.

“When the Federalists do it the progressives claim they’re not being neutral,” Abernathy said. “When the progressives do it the Federalists claim they’re not being neutral.”

Whatever its inconsistencies, the Federalist Society succeeded in creating a movement that extended well beyond its law-school roots. Unique in both its model of activism and its astounding success, the Federalist Society grew to become a singular force in American life. Viewed in conspiratorial terms by the left, as the engine of the conservative takeover of the courts, the society nonetheless presents itself as an educational organization. Many of its more than 70,000 members insist its appeal is its intellectual rigor, its willingness to examine and re-examine the principles behind the law.

In his 2008 book “The Rise of the Conservative Legal Movement,” Johns Hopkins University professor Steven M. Teles traced the society’s staying power to its self-restraint: “The key decision … was to narrow its mission to facilitating the activism of its members and influencing the character of intellectual debate rather than directly influencing the actions of the government itself.”

Teles showed how the society built a big tent by advising its chapters to avoid billing their events as conservative confabs, and to include liberal professors in their discussions. This, in itself, shaped the debate to conservative ends — even if liberals were invited to offer their side of the story — without turning away people who weren’t yet ready to identify as conservative. Likewise, the group refused to take positions on issues, declined a proposal to rate judges and resisted the creation of a litigation branch. All of these moves served to keep the society above the fray, out of the line of political fire, whether from the left or factions of the right.

“The Federalist Society espouses no official dogma,” enthused the late Sen. Orrin Hatch (R-Utah), an early admirer. “Its members share acceptance of three universal ideas: One, that government’s essential purpose is the preservation of freedom; two, that our Constitution embraces and requires separation of governmental powers; and, three, that judges should interpret the law, not write it.”

In practice, however, the society’s existence as a counterweight to the liberal establishment provided more than enough ideological ballast. While conservatives had long bemoaned how judges appointed by Republican presidents often veered leftward on the bench, members of the Federalist Society, through their very willingness to define themselves against liberals, seemed unlikely to undergo a similar metamorphosis. So when then-2016 Republican presidential nominee Donald Trump promised conservatives he would only appoint party-approved judges, membership in the Federalist Society became a badge of trust.

Trump appointee Neil Gorsuch speaks at the Federalist Society's 2017 National Lawyers Convention in Washington, Nov. 16, 2017. | Sait Serkan Gurbuz/AP Photo

When Trump was elected, the society’s then-executive vice president, Leonard Leo, consulted regularly with the administration on judicial appointments, as did Senate Republican leader Mitch McConnell through the president’s White House counsels, Donald McGahn and Pat Cipollone. What followed was a deluge of Federalist Society members receiving judicial appointments.

The result was a transformation of the judiciary, including the Supreme Court, but also a series of blows to the Federalist Society’s self-image: An organization founded to combat ideological conformity was now a symbol of ideological conformity; an organization that decried the politicization of the law was the fulcrum of a political deal; an organization that rigorously insisted on open debate was strategizing behind the scenes with a Republican administration, and so on.

All of that sat somewhat uneasily with the society’s academic members. While excited at what many saw as turnabout on the perceived liberal forces that, in their opinion, had shaped the judiciary for decades, others felt more than a pinch of discomfort at the association with Trump, who quickly began rebranding Federalist Society members as “Trump judges.”

Despite those misgivings, it would be wrong to suggest that Federalist Society denizens don’t have an extra bounce in their step after the 2021-22 Supreme Court term.

“This year we won just about everything,” said Blackman. “Only victories across the board, which has never happened in my adult life.”

Carrie Severino, president of the conservative legal group JCN, mentioned Second Amendment gun rights, racial preferences and excesses of the administrative state as potential rallying points now that Roe has been overturned. And she took issue with the idea that judicial restraint means judges should avoid making waves; in her view, it means only that they should operate within the bounds of the Constitution.

“The John Robertses of the world may believe judges should do as little as possible,” she said. “I don’t think that’s the view of most Federalist Society members.”

One of the most respected conservative constitutional experts, Georgetown professor Randy E. Barnett, accepts the idea that “taking Roe off the table clears the way for other agenda items.” Barnett, co-author of a book calling for a significant reinterpretation of the 14th Amendment, has some ideas of his own in the mix, including a view that the Constitution’s “privileges and immunities” clause incorporates a right to contract, a potential linchpin for expanded legal protections of businesses. While that end may be appealing to conservatives, some have already rejected the right to contract as cited in the 1905 case of Lochner v. New York, whose precedent invalidated much of the New Deal.

“This is a long-standing, fundamental divide in the conservative movement,” Barnett acknowledged, while adding, “The only thing that’s changed is my side has gained some support.”

It’s a heady time, and members heading to the capital for the convention seemed energized, even if less certain of the direction of their movement. But there’s another cloud on the horizon — one that several mentioned unprompted, but declined to discuss on the record, and that’s the prospect of a second Trump presidency.

At first blush, this seems odd: Whatever the dangers presented by Trump, he was a boon to the conservative legal movement. Trump’s deals with McConnell and Leo restrained his worst impulses: The “Trump judges” for the most part bore little resemblance to Trump’s own lawyers and hangers-on.

“Neil Gorsuch is not Corey Lewandowski; Stephanos Bibas is not Rudy Giuliani,” wrote National Review editor Rich Lowry in 2020, after Bibas, a Trump-appointed circuit judge and longtime Federalist Society member, authored an opinion dismissing Trump’s challenge to Pennsylvania’s election results.

But Trump seems to have noticed that his Federalist Society appointees aren’t necessarily the toadies he wanted. On the campaign trail, the former president has broken openly with McConnell — going so far as to demand his “impeachment” — and ramped up complaints about the legal system.

Would a renominated Trump be open to another deal to appoint Federalist Society judges? The betting would be against it. And his attacks on the 2020 election, while unsuccessful, nonetheless introduced him to a new cast of counselors far more willing to do his bidding, but also lightly credentialed, politically opportunistic and mostly uninterested in the Federalist Society.

Behind all the theatrics, Trump’s challenge to the Federalist Society is not fundamentally different from the society’s internal dilemmas. He is simply more blatant in his demand that the courts be his spoils, with judges doing his bidding, enhancing his power and advancing his politics.

At heart, the choice confronting Federalist Society members is clear even if their verdict is not: Be true to their vision of the limited role of the judicial system or succumb to a winner-take-all mindset, pursuing goals that may appeal to them but also strike their inner conscience as not all that different from those they accused the Roe court of harboring back in 1973.

The society has seen its nemesis, and its name is Dobbs.

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