"[S]o much of the [Federalist] Society's leadership consists of active politicians and others whose slouching towards extremism is self-proclaimed."[1]
As the conservative movement develops its challenge to fundamental institutions in the American body politic, ranging from the public schools to the Republican Party and the mainline religious denominations, it has not ignored the legal front. Extreme conservative legal organizations sponsoring a combination of right-wing litigation and advocacy are opening the way for a radical transformation of the American legal system.
One of the most significant developments has been the emergence of the Federalist Society for Law and Public Policy Studies, formed in 1982 and based in Washington, D.C. This organization has developed comprehensive challenges to a broad range of constitutional principles, and it is targeting the courts, the law schools, and the American Bar Association (ABA) itself.
Serious questions also have been raised about the Federalist Society in the federal judicial selection and confirmation process. Senior Judge Roger J. Miner of the U.S. Court of Appeals for the Second Circuit warned as long ago as 1992 that the power of appointment of federal judges "has shifted away from Presidents and Senators to staff," and that "the force of history and attachment to the coattails of political winners have catapulted them [the right-wing lawyers clustered around the Federalist Society] to positions of power, first as law clerks, then as movers and shakers in the office of the Attorney General, and now in the office of the President. This has been accomplished not by acquiring political power but by co-opting it. Lee Liberman, a founder of the new Federalists and now Assistant Counsel to the President, examines all candidates for federal judgeships for ideological purity. It is well known that no federal judicial appointment is made without her imprimatur."[2]
These developments have already had an effect in stimulating the rising anti-federalist jurisprudence of important Supreme Court decisions.[3] The push for significant restrictions on Congress's authority to legislate goes far beyond public skepticism about the efficacy of government programs, a renewed desire for regulatory efficiency, and necessary streamlining. Strategic constitutional challenges are being mounted across the state-level and federal judiciary in areas that were previously viewed as settled law and enjoyed widespread consensus. Meanwhile, an extensive network of large foundations, attorneys in prominent private and public interest law firms, activist groups, and political interests are expanding their institutional capacity while demonstrating growing sophistication in organizing toward their strategic goals.
At the heart of this process is the Federalist Society, an often underestimated but increasingly powerful and influential organization of conservatives and right-wing libertarians in the bar. The Federalist Society's leaders include some of the most influential figures on the right, among them former Attorney General Edwin Meese III, former federal judge and Supreme Court nominee Robert Bork, and former president of the Christian Coalition Donald Paul Hodel. Another key leader of the organization, former President Bush's White House counsel C. Boyden Gray, was cited by The Washington Post as a "possible attorney general in a George W. Bush administration."[4] Several sitting Supreme Court justices have spoken under the auspices of the Society, and several leading judges on the federal bench serve in an advisory capacity to the Society's local chapters.[5] Backed by several million dollars from right-wing foundations that have played a leading role in building the conservative movement, they are successfully shaping the direction of the challenge to a democratic jurisprudence.
The Federalist Society drives its agenda behind a seductive facade of "intellectual debate," seeking to project the appearance of a genuine desire to engage constructively with mainstream positions on legal issues. The effectiveness of the Federalist Society is apparent in its significant presence in law schools, as well as in its involvement in recent challenges to the role of the American Bar Association. The Society membership includes more than 40,000 lawyers, policy experts, and business leaders who are involved in sixty Lawyers Division chapters nationwide. The Society also offers continuing legal education (CLE) programs and promotes rightist views through publications and a number of sophisticated Web sites.
In its efforts to shape the parameters of debate in law schools and to develop a capacity for recruitment and career development, the Federalist Society has launched a Faculty Division, as well as a Student Division with a network of some 140 law school chapters containing 5,000 members nationwide. Edward Lazarus, a former law clerk for Justice Harry Blackmun, wrote in his book, Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court, that membership in the Society "became a prerequisite for law students seeking clerkships with many Reagan judicial appointees as well as for employment in the upper ranks of the Justice Department and the White House."[6] With an annual budget of close to $3 million, the Society holds high-profile annual national student symposia and numerous local conferences targeting lawyers, law students, and faculty to showcase conservative views on key legal issues. The Society claims the academic high ground by staging "balanced" debates through which it can introduce its agenda into the law school environment. It also exploits the prevailing anti-regulatory mood (the growing interest in "new federalism") to legitimate a dubious and, in fact, anti-federalist view of the beliefs of Madison and other framers of the Constitution.[7]
Federalist Society representatives and publications frequently criticize what they term "judicial activism." These criticisms seek to impugn, unfairly, judicial actions that do not accord with their philosophy. Decisions that reflect evolving constitutional concepts of social justice are denounced as lacking the necessary grounding in the constitutional authority of the court. Conversely, many radical legal interpretations conforming to so-called traditional values or radical deregulatory positions find acceptance as good law. The Society's many publications and forums offer arguments that challenge the public sector in the name of the Non-Delegation Doctrine, attack government administrative fees, and argue for the abolition of the Securities and Exchange Commission and the limitation of directives from the Environmental Protection Agency and the Occupational Safety and Health Administration.
Federalist Society publications and panels often feature discussions targeting the foundation of federal civil rights law, finding and exploiting alleged shortcomings, for example,[8] in voting rights laws, gender equity protections, and desegregation orders. In the area of labor rights, contributors to the Society's publications have celebrated the defeat of disparate impact theory as applied in a California age discrimination case and challenged sexual harassment law, Title IX, the Americans with Disabilities Act, and standard "wage gap" statistics.
Another target in Society discourse has been the separation of church and state, one of the cornerstones of American jurisprudence. Reflecting the presence of the religious right in its leadership, membership, and targeted constituencies, the Society's forums and outlets have given prominence to arguments for "school choice" and "charitable choice" (church involvement in state efforts to reform welfare), as well as creationist teachings and the distribution of religious materials in public schools.
By creating an image of itself as a catalyst for principled, high-level discussion of the law, the Federalist Society has been able to avoid sharp scrutiny by the legal profession. This is particularly the case in regard to the significant role that leading members of the Society, such as Senator Orrin Hatch (R-Utah), have played in politicizing the process of judicial selection, and in undercutting the nation's premier organization of attorneys, the American Bar Association, and in particular its Standing Committee on the Federal Judiciary.
The Society's religious right and right-wing libertarian ideological strains come together around anti-federalist principles advocating a broad diminution of the role of the courts and of the federal government in general. The breadth of the Society's reach highlights the significance of its fifteen practice groups, spanning areas such as religious liberty, national security, cyberspace, corporations law, and environmental law. The practice groups provide the operational capacity for the promotion of a range of conservative and libertarian views, including some that are quite extreme. For example, in 1998 the chair of the Financial Institutions practice group advocated abolishing the Securities and Exchange Commission.[9]
The mainstream legal community has begun to recognize that Federalist Society leaders are playing a disproportionate role in the judicial selection process. Former President George Bush's White House Counsel, C. Boyden Gray, who is a longtime leader of the Federalist Society, employed Lee Liberman Otis, a co-founder of the Society, as a key player in the screening of candidates for the federal bench.[10] Former Iran-Contra special prosecutor Lawrence Walsh has written that he was "especially troubled that one of White House Counsel Boyden Gray's assistants had openly declared that no one who was not a member of the Federalist Society had received a judicial appointment from President Bush."[11]
The Society has set its sights on the American Bar Association. Perhaps most clearly evidenced by the Federalist Society's publication ABA Watch, Society members have been involved at all levels of the attack on the ABA. As heralded in a "special edition" of ABA Watch in March 1997, Senator Hatch, chair of the Senate Judiciary Committee and co-chair of the Federalist Society board of visitors, announced that he would no longer invite the ABA to participate on a pro forma basis in the Senate judicial confirmation process.
Furthermore, in the keynote address on "judicial independence" at the 1999 Federalist Society National Lawyers Convention, Justice Clarence Thomas openly denounced the ABA: "I am doubtful whether the ABA can ever 'reform' itself."[12] He then juxtaposed the ABA, which he labeled "an interest group," with the Federalist Society: "The Federalist Society, by the way, should be commended for maintaining the wall of separation between law and politics."[13] Shortly thereafter, the Federalist Society announced that it would develop "voter guides" for ABA elections -- an unprecedented effort to influence the governance of the ABA. This is reminiscent of the Christian Coalition's allegedly partisan efforts to influence elections by regularly issuing voting guides.[14]
The Federalist Society goes to great lengths to present itself as nonpartisan, claiming that, unlike the ABA, it does not take official positions as an organization. Steven Calabresi, a founder and co-chair of the Society's board of directors, told The National Law Journal that "a conscious decision" was made early on "not to be a specific advocacy organization," to make participating judges "feel more comfortable."[15] In practice, however, this decision made the Society's partiality informal, but no less aggressive. The Federalist Society's practice groups, conferences, and written material routinely illustrate that there is little about the Society that is nonpartisan. Rather, these various platforms serve as a "mainstream" venue for conservative and right-wing libertarian beliefs, considered far outside the mainstream in their opposition to important federal and civil rights legal standards. In fact, The National Law Journal noted, although the "group is officially nonpartisan, the sometimes hidden influence of the Federalist SocietyŠhas already been felt‹in the Reagan and Bush Justice Departments, which filled their ranks with members, and among judges, who participate in the Society's programs and hire members as clerks."[16]
In addition, the Federalist Society's activities complement the objectives of other important legal institutions on the right. These institutions include radical right-wing law schools, such as Pat Robertson's Regent University School of Law in Virginia, and the recently launched Ave Maria School of Law in Michigan. Thomas S. Monaghan, former owner of Domino's Pizza, sponsors Ave Maria, and its faculty includes Robert Bork.[17] There are also a number of sophisticated legal advocacy and litigation organizations on the right, such as the Institute for Justice, the Washington Legal Foundation, the Center for Individual Rights, and the Pacific Legal Foundation, among others. Complementing these secular right groups, there has been a proliferation of religious right litigation organizations gaining in resources, vastly increasing their power base, and successfully building a strategic litigation capacity. These organizations include Pat Robertson's American Center for Law and Justice, the Christian Legal Society, and the Rutherford Institute. The Alliance Defense Fund, whose board of directors includes leaders of the most powerful of the religious right organizations, pools millions of dollars to sponsor challenges to the separation of church and state and further the agenda of fundamental legal change being promoted by extreme religious interests.[18]
The Federalist Society is more than a group of lawyers with reactionary ideas. Although the Society never argues a motion or files a case, it is quietly gaining influence in key areas of the American judicial system. Although its members clearly have the right to further their debate on extreme conservative and right-wing libertarian legal positions, the mainstream legal community of America also has the right to an open and informed discussion on exactly who is behind this emerging legal power on the right, and what its purpose is. This understanding is of particular importance at a time when much of the accepted jurisprudence of the last few decades is under severe attack.
To order the full text of The Federalist Society and the Challenge to a Democratic Jurisprudence, please go to "Order IDS Publications."
| [1] | "ABA President Jerome Shestack Responds," ABA Watch, August 1998, p. 15. |
| [2] | Hon. Roger J. Miner, "Remark: Advice And Consent In Theory And Practice," The American University Law Review, Summer 1992, 41 Am. U.L. Rev. 1075. See also H. Otis Bilodeau, "Takings Rulings Help Businesses Defend Against Regulation," Legal Times, 10 May 1999, p. S32. |
| [3] | See U.S. v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), and more recently, U.S. v. Morrison, 120 S. Ct. 1740 (2000) (per curium), affirming. Brzonkala v. Polytechnic Inst., 169 F.3d 820 (4th Cir. 1998). |
| [4] | David S. Broder, "Never Too Early to Start Making Plans; The Making of a White House Administration," Washington Post, June 6, 2000, p. 23. |
| [5] | George E. Curry and Trevor W. Coleman, "Hijacking Justice," Emerge, October 1999, p. 48. |
| [6] | Edward Lazarus, Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court (New York: Penguin Books, 1999), p. 264. |
| [7] | On the concept of federalism and the role of the Federalist Society, see the seminal article by Hon. Roger J. Miner, "Remark: Advice And Consent In Theory And Practice," The American University Law Review, Summer 1992, 41 Am. U.L. Rev. 1075. |
| [8] | Abigail Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights (1987), cited in "Conservative and Libertarian Legal Scholarship Annotated Bibliography," Federalist Society Web site, August 17, 2000, www.fed-soc.org/biblio.htm; Federalism and Separation of Powers Practice Group, "Federalism Revived? The Printz and City of Boerne Decision," October 17, 1997, www.fed-soc.org/fd020103.htm. |
| [9] | Jonathan Macey, "The Case for Abolishing the SEC," Corporations, Securities and Antitrust News, Vol. 2, No. 2, Summer 1998, p. 1. See also The Federalist Society, E.L. Wiegand Practice Groups, Financial Institutions, Executive Committee Directory, 1998. |
| [10] | Jane Mayer and Jill Abramson, Strange Justice: The Selling of Clarence Thomas (Boston: Houghton Mifflin, 1994), p. 153. |
| [11] | Lawrence E. Walsh, Firewall: The Iran-Contra Conspiracy and Cover Up (New York: W. W. Norton, 1997), quoted in George Curry and Trevor W. Coleman, "Hijacking Justice." Emerge, October 1999. |
| [12] | Associate Justice Clarence Thomas, Speech on Judicial Independence to Federalist Society 1999 National Lawyers Convention, November 12, 1999, http://www.fed-soc.org/contents.htm. |
| [13] | Ibid. |
| [14] | The Interfaith Alliance, "Outreach to Congregations: Voter Guide Warnings," November 1, 2000, http://www.interfaithalliance.org/Initiatives/ctfd_outreach.html. |
| [15] | Rex Bossert, "Conservative Forum Is a Quiet Power; ABA Watchdog: Federalist Society Serves as a Job Network in GOP Circles," The National Law Journal, September 8, 1997, p. A1. |
| [16] | Ibid. |
| [17] | Jim Suhr, "Bankrolled by Pizza Mogul, New Catholic Law School to Begin Classes," Associated Press, August 26, 2000. |
| [18] | Alliance Defense Fund, 1998 IRS Form 990; Alliance Defense Fund, 1999 IRS Form 990. |