Your book talks about the importance of the Federalist Society in explaining the resurgence of legal conservatism in recent decades. What is the Federalist Society, and why did conservative lawyers need something like it?
The Federalist Society is a conservative and libertarian legal network founded in 1982. It developed in response to a recognition by conservatives and libertarians that they could win election after election, but that they would not change law or politics until they could successfully capture the courts and other elite institutions. So the Federalist Society is part of an attempt to build an alternative legal elite; one capable of moving conservative and libertarian ideas into the mainstream. And it has worked. As evidenced by Trump’s repeated flaunting of his list of potential judges as “Federalist Society approved,” the society — now a vast network of tens of thousands of conservative and libertarian lawyers and judges — has evolved into the de facto gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents.
Your book argues that debates within the Federalist Society both help to develop conservative legal arguments and provide a legitimating audience for judges when they adopt conservative doctrines. How does this work?
The Federalist Society doesn’t exert its influence in ways that are familiar to observers of American politics. As a self-professed “society of ideas,” the Federalist Society exerts its influence more subtly — by training, credentialing and socializing right-of-center lawyers through its conferences, events and educational programming. It then activates its vast and powerful network to place the best and bona fide among its ranks into prominent positions in the government or on the federal judiciary. Because judges have lifetime appointments, the trick is to keep them “faithful” to their Federalist Society training once on the bench.
There are too many cautionary tales of good Republican judicial appointees drifting to the left once on the bench (Harry Blackmun, John Paul Stevens, David Souter). The Federalist Society aims to counteract this liberal drift by responding vocally to decisions that seem out-of-step with Federalist Society principles. A great example of this is the backlash Chief Justice Roberts experienced in Federalist Society circles when he voted to uphold the individual mandate of the Affordable Care Act — a piece of legislation Federalist Society members mobilized en masse against.
On the other hand, the Society applauds and reinforces the good behavior of its judges and justices, praising them in the media, in law review articles, and in-person at Federalist Society conferences. Anyone who studies psychology will tell you that this kind of feedback — negative or positive — can have an impact on behavior and decision-making.
The Trump presidency seems antithetical to the kinds of patient development of legal arguments that you describe in your book. Nonetheless, as Toobin wrote, there is a very close relationship between the Trump administration and the Federalist Society in choosing judges to nominate to federal courts. How does the Federalist Society manage the tension between building up legitimacy with the broader legal profession and working with an administration that expresses contempt for judges who make inconvenient rulings?
So much of what this president says and does is anathema to the core and founding principles of the Federalist Society. Ideas about limited government, the rule of law, and the separation of powers have been under constant assault since day one of his presidency. So how can the Federalist Society work with such a president? As the late-Justice Scalia (founding faculty adviser to the Federalist Society) wrote in two of his most famous dissents, “this [ ] is about power.” Access to power is key to the Federalist Society’s long-term goal of capturing the courts and reorienting constitutional and legal culture to embrace conservative and libertarian ideas. Access to Trump means access to power and because judges and justices serve, on average, 26 years on the bench, the Federalist Society’s influence will long outlast this president.
You discuss how the liberal answer to the Federalist Society, the American Constitution Society, has not had the same success as its conservative equivalent. Why not?
The American Constitution Society (ACS) copied the Federalist Society’s organizational blueprint in the hopes that it could replicate their success and influence for liberals and progressives. To really replicate the Federalist Society’s success, ACS would first need to become the kind of gatekeeper for Democratic administrations that the Federalist Society has become for Republicans. To be fair, ACS has only had eight years of political access since it was founded. Though it had a few high-profile placements within the Obama administration — Attorney General Eric Holder, for example — the vast number of Democratic federal court appointments under Obama, including his two Supreme Court appointments, did not have strong and identifiable ties to ACS. Part of the reason for this is because there are dozens of ways to get credentialed on the left — involvement with the American Bar Association, professor at an elite liberal law school, for example — and only one way to get credentialed on the right — involvement with the Federalist Society.