Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution
By Amanda Hollis-Brusky
Oxford, 264 pages
Last November, the Federalist Society hosted its annual National Lawyers Convention at the Mayflower Hotel in Washington D.C. with some 1,500 prominent jurists, judges, and academics in attendance. The conference featured a keynote address by Justice Antonin Scalia, a luncheon address by Justice Samuel Alito, a debate on national security between former Attorney General Michael Mukasey and Nadine Strossen, of the American Civil Liberties Union, and dozens of panels on specialized legal subjects. The Federalist Society conclave has evolved over the years into the nation’s most important and influential gathering of right-of-center jurists, providing participants with opportunities to debate ideas, discuss the latest Supreme Court decisions, do career networking, and, on occasion, plot the next steps in the conservative legal revolution.
The national conference is only the most visible of the Federalist Society’s programs, which reach down into the law schools, state courts, and the legal profession, but it is emblematic of the organization’s approach. Unlike the American Civil Liberties Union or various public-interest law firms, the Federalist Society does not file lawsuits. Nor does it lobby for legislation or take positions on controversial issues or endorse candidates for judgeships or elective office. For the most part, it provides a forum or platform for the discussion of judicial philosophy and strategy, but out of that approach its leaders and members have built an intellectual engine that can claim credit for most of the advances conservatives have made in the judicial arena over the past three decades.
The Federalist Society dates back to 1982, when three law students at Yale and the University of Chicago—Steven Calabresi, Lee Liberman, and David McIntosh—set out to create a conservative alternative to the left-liberal orthodoxy then taught at most law schools. The coverage of their inaugural event, a national symposium at Yale, led to inquiries from law students across the country interested in setting up Federalist Society chapters at their home institutions.
The founders soon set up headquarters in Washington D.C. to channel this interest into a national movement. With the financial support of a few conservative foundations, the fledgling operation advanced step by step—first with student chapters, then with professional chapters in major cities, national symposia, and special conferences and seminars on topics dealing with property rights, affirmative action, free speech, federalism, and other matters before the courts. Today the society boasts some 45,000 members, operates with an annual budget of $14 million, sponsors robust student chapters at every major law school, and organizes more than 1,000 events (mostly lectures and seminars) every year at law schools across the country. With alumni now occupying influential professorships and judicial positions, the Federalist Society has achieved an impressive level of influence in legal circles.
Amanda Hollis-Brusky, an assistant professor of politics at Pomona College, tells the story of the rise and influence of the Federalist Society better than anyone so far. Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution describes how the organization managed to parlay all those chapters and seminars into far-reaching Supreme Court decisions. She interviewed 40 or so leaders and members of the organization, and examined the programs of Federalist Society conferences and symposia all the way back to 1982 to map the organization’s network of influential speakers and determine if certain constitutional issues were given priority in these meetings. Her conclusions will dismay those prone to viewing conservative enterprises in terms of plots and conspiracies, or as fronts for business interests: She thinks the Federalist Society has succeeded on the basis of its ideas and its ability to organize programs around a few simple but powerful principles.
From its early days, the Federalist Society organized its efforts around this statement: “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.” This is a concise summary of the “originalist” position regarding the Constitution and judicial interpretation: that the courts should be guided by the original understanding of the authors of the Constitution with regard to liberty, the separation of powers, and the limited role of the Supreme Court to expound the law but not to make it. The originalist case was advanced both by the Federalist Society and conservatives in the Reagan administration in opposition to liberal theories based upon the rudderless concept of a “living Constitution” that the courts are supposed to interpret in the light of evolving historical circumstances.
These principles, straightforward as they are, did not resolve every issue within the ranks of Federalist Society. From the beginning, they were divided into two camps regarding the question of judicial “activism.” There were, on the one hand, legal scholars such as Robert Bork who (responding to the activism of the Warren Court) argued that the Supreme Court should be wary of overturning precedents, and should defer as far as possible to decisions of the legislative branch. Opposed to this were libertarian and natural-law scholars (such as Randy Barnett and Richard Epstein) who argued that it is the duty of the Supreme Court to defend the original understanding of the Constitution, and that it must overturn judicial precedents and congressional acts that come into conflict with liberty, property rights, and the division of powers. In this latter sense, “activism” is justified if it is used to defend the original understanding of the Constitution.
This key division was debated for two decades or more at seminars and conferences sponsored by the Federalist Society. As Hollis-Brusky argues, that debate seems to have been settled in recent years in favor of the libertarian or natural-law understanding of the judicial role—in other words, in favor of federal courts playing an aggressive role in defending the Constitution.
Hollis-Brusky examines four areas in which she argues the Federalist Society has had a large influence in shaping Supreme Court decisions: the right to bear arms, campaign finance, federalism, and the commerce clause. The Federalist Society began by organizing “practice groups,” along with seminars and debates, in order to flesh out the intellectual case for a new approach to the law in these areas, and then to design strategies to advance those arguments in the courts. In most instances, this process took years or decades to mature, and the arguments were not brought to fruition until a sympathetic majority was finally in place on the Supreme Court.
With respect to the Second Amendment, the Court ruled (in an opinion written by Justice Scalia) in Heller v. District of Columbia (2008) to reverse its longstanding position that “the right to bear arms” is a collective right linked to the power of state governments to establish militias, now holding for the first time that the Amendment confers an individual right to bear arms. Two years later, Justice Alito, in McDonald v. City of Chicago, wrote the opinion in which that right was made applicable to the states. As Hollis-Brusky writes, these two cases “represented a seismic shift in the Supreme Court’s Second Amendment jurisprudence” that never would have happened absent the efforts of the Federalist Society.
In Citizens United v. Federal Election Commission (2010), the Court did something equally bold in the field of campaign finance, striking down its own precedents along with provisions of the McCain-Feingold Campaign Finance Act (2002) that restricted contributions by corporations and labor unions to issue-oriented campaigns. Here, in that far-reaching decision, the Court accepted a principle that members of the Federalist Society had been advocating for years: that money is a form of speech deserving protection under the First Amendment.
Finally, in the “ObamaCare” case decided in 2012 (NFIB v. Sebelius), the Court came face to face with two lines of argument advanced by members of the Federalist Society: first, that principles of federalism do not permit the federal government to use coercive measures to bring state governments into line; and, second, that the Commerce Clause must be interpreted narrowly to reach only those transactions that extend across state lines. (Since the New Deal, the Court has interpreted the Commerce Clause broadly to include just about any activity or economic transaction.) In that case, the Court struck down the Medicaid provisions of the Affordable Care Act as an unconstitutionally coercive invasion of state sovereignty, while upholding the individual mandate to purchase health insurance, albeit under the federal government’s taxing power rather than under its power to regulate interstate commerce.
Hollis-Brusky suggests that these precedents are likely to be extended and perhaps applied to new areas in the years to come—perhaps as they already have in recent decisions to extend religious-liberty protections to private companies (Burwell v. Hobby Lobby Stores, Inc.) and to strike down provisions of the Voting Rights Act that the Court found to violate principles of federalism (Shelby County v. Holder).
Ideas with Consequences is particularly valuable for describing how the Federalist Society has advanced its principles. While Hollis-Brusky is not especially sympathetic to the organization or its goals, she is clearly impressed with they way it has conducted its affairs and the results it has achieved through its consistent focus on ideas and principles. But her book is not a thorough or exhaustive study of the Federalist Society, as it is mainly concerned with the ways through which the organization has leveraged its activities to produce a handful of important judicial outcomes. It does not examine the society’s student chapters in the law schools or the influence such efforts might have had on faculty hiring and the kinds of courses offered at those institutions. Nor does the book delve into the organization’s important work on a range of issues, such as affirmative action, congressional and legislative districting, and the use of international law in U.S. courts.
Near the end of her book, Hollis-Brusky wonders if progressives can emulate these successes, noting that they have set up the American Constitution Society as a competitor and rival to the Federalist Society. Of course, progressives have less need for such an organization, since they still control the faculty and curricula of the major law schools. Nevertheless, one suspects that American leftists are too sectarian in their interests, and far too divided into their feminist, racial, and environmental caucuses to carry on long-running debates and discussions with those who are not in total agreement with them. Political correctness is a liability in this kind of enterprise, and it is a testament to members of the Federalist Society that they never succumbed to the temptation to purge or walk out on those with somewhat different views. This perhaps is the great difference between a movement devoted to ideas and principles, and one organized around interests and ideology.