March 16, 2015

Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution

by Amanda Hollis-Brusky, professor of political science at Pomona College

“A Vast Right-Wing conspiracy!” “The Conservative Cabal Transforming America!” “Are you now or have you ever been a member of the Federalist Society?”

The Federalist Society for Law and Public Policy Studies has been no stranger to accusations of this kind over the years. Those on the left and the right universally acknowledge that the Federalist Society is an organization of significant consequence. But very few understand how this self-professed “society of ideas” with none of the traditional signs of political power is exerting its influence on law and the legal culture. Drawing on a trove of archival, ethnographic and original interview data, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution addresses this question head on.

The Federalist Society – a network of more than 40,000 conservative and libertarian lawyers, academics, judges, policymakers, and journalists dedicated to reshaping the law – grew out of the frustrations of a small group of right-of-center law students who felt isolated in their left-of-center law schools in the 1980s. Inspired by the ideas and tenets of the Reagan Revolution raging outside the walls of their elite law schools, these first Federalist Society members were recruited to work as Special Assistants in the Reagan Justice Department where they heard two oft-repeated phrases: “ideas have consequences,” and “policy is people.” These two phrases would become the two main pillars of the Federalist Society as we know it today – as an organization that intellectually trains and socializes its members, exposing them to a distinctly conservative and libertarian way of thinking about the law and also encourages and facilitates opportunities for its members to put these ideas and principles into practice as lawyers, judges, etc. It is a simple formula, but one that has served them remarkably well over the past thirty years: ideas + people = policy consequences.

Ideas with Consequences provides an in-depth examination of the ideas and the people of the Federalist Society network and shows how, together, they have helped shape some of the most important decisions of the conservative counterrevolution. It shows how Federalist Society network members served as a vital and valuable source of ideas or “intellectual capital” for Supreme Court decisionmakers looking to support their revolutionary reinterpretations of the constitution in the areas of the Second Amendment and the right to bear arms, the First Amendment and campaign finance, the federal commerce power, and state sovereignty. It also shows how the Federalist Society network helped to create a climate conducive to constitutional counterrevolution: by training, credentialing, and helping to get the right kinds of Justices on the Supreme Court; by acting as a vocal and attentive “judicial audience” to keep those Justices from drifting to the ideological center or left; and by legitimating Originalism as a valid mode of constitutional interpretation, both in the legal academy and in the broader political culture.

While Ideas with Consequences answers the question of what the Federalist Society does and how it exerts its influence, it does not conclusively answer the question of what the Federalist Society is. Is it simply a more formalized version of the informal elite networks that have always operated within the legal community, or is it truly innovative and different? I suggest that the Federalist Society’s innovation – the act of formalizing and institutionalizing these once informal networks – has been a game-changer within the legal community. The best evidence of this, of course, was the founding in 2001 of the organization that hosts this blog – The American Constitution Society (ACS). The very existence of ACS is evidence that those on the left believe that the informal networks and processes that successfully helped support and implement the liberal legal agenda for half a century are now insufficient counterweights to the more formalized and organized Federalist Society network.

So, if the Federalist Society model and the rise of its progressive counterpart does represent a new model of identifying, training, promoting and disciplining lawyers on both the right and the left from professional cradle (law school) to professional grave (retirement), then what consequences might this have for the legal profession specifically and for the politicization of law, more generally? By governing the ideological socialization of young law professionals and plugging them into a political network that creates professional incentives for students and lawyers aspiring to top clerkships, positions in the national bureaucracy, and federal judgeships, some fear that these legal-hybrid organizations have further blurred the crucial divide, however tenuous, between law and politics and contributed negatively to the polarization of the law.

Others say these Societies are an improvement on the old model of networking within the legal profession based on school credentials or family ties. As George Washington University Law Professor Orin Kerr has said, “Now the networking is more open.” These normative questions will be important for scholars, students, and practitioners of American politics and law to engage with as we seek to understand and evaluate the mechanisms, old and new, by which ideas can and do have consequences.