This past March, when the Federalist Society for Law and Public Policy Studies held its 37th annual national gathering for conservative law students, the lineup of speakers and panelists included an impressive number of Republican Party and conservative movement stars.
All four of the conference’s main panels were chaired by active Republican-appointed federal appeals court judges.
Amul Thapar—a protégé of Senator Mitch McConnell who “nearly wouldn’t speak” to his own father upon finding out he had voted for Barack Obama, his father said—directed one panel. Edith Jones, a long-time 5th Circuit judge considered too conservative for the Supreme Court by the George H.W. Bush administration, moderated another. Elizabeth Branch, a recent appointee of President Donald Trump to the 11th Circuit and former senior official in the George W. Bush administration, moderated the third panel, while fellow Trump appointee to the 6th Circuit John B. Nalbandian moderated the fourth. And the “keynote” was a “fireside chat” between former GOP Senator Jon Kyl and Arizona Governor Doug Ducey, a fellow Republican.Despite what appears to be an obvious political valence, the Federalist Society and its high-profile members have long insisted the nonprofit organization does not endorse any political party “or engage in other forms of political advocacy,” as its website says. The society does not deny an ideology—it calls itself a “group of conservatives and libertarians”—but it maintains that it is simply “about ideas,” not legislation, politicians or policy positions.
Federalist Society documents that one of us recently unearthed, however, make this position untenable going forward.
The documents, made public here for the first time, show that the society not only has held explicit ideological goals since its infancy in the early 1980s, but sought to apply those ideological goals to legal policy and political issues through the group’s roundtables, symposia and conferences.The question of whether the Federalist Society is properly characterized as a “society of ideas” or a political organization has significant ramifications. The Code of Conduct for United States Judges, a set of guidelines administered by the federal judiciary’s Judicial Conference, was revised earlier this year to bar sitting federal judges from participating in conferences and seminars sponsored by groups “generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.” (The Code does not “explicitly” apply to Supreme Court justices, though they have looked to it in the past.) One former federal judge argued that under the new ethics opinion, the Federalist Society is now a “no-go zone for federal judges.” The Society’s president, Eugene Meyer, responded, calling the former jurist’s argument an “absurd and ludicrous” interpretation of the rule, adding that the Federalist Society has said “time and again” that it is nonpartisan and does not take official policy positions.
But the newly unearthed documents—a 1984 grant proposal and cover letter, written by Meyer on the Federalist Society’s behalf and now housed in the late Judge Robert Bork’s papers at the Library of Congress—provide evidence that the Federalist Society, in contravention of what the new Code states, in fact “advocates for specific outcomes on legal or political issues.” This suggests that federal judges, by attending Federalist Society events, are transgressing the Code’s new guidelines. Given the importance of active federal judges to the Federalist Society’s long-term goal of reshaping the law, barring them from the society’s events could hamper its continued ability to exert the political influence it has impressively built over decades.
The Federalist Society was founded in 1982 as a small law student group with the goal of bringing conservative and libertarian speakers, and their ideas, to law school campuses perceived to be dismissive of these intellectual traditions. After the Federalist Society held its first national symposium at Yale Law School that year—featuring recent Reagan-appointed federal appeals court judges Bork and Antonin Scalia—Federalist Society student groups started popping up on law school campuses around the country. The organization now boasts more than 65,000 members, and most federal judgeships, clerkships and executive branch legal jobs in Republican administrations are effectively off-limits to nonmembers.
The Federalist Society’s founders and conservative patrons understood early on that the battle for control of the law would not be won on campuses alone. In the January 1984 grant proposal, Meyer, then the Federalist Society’s executive director, asked the conservative-leaning Smith Richardson Foundation for “seed money” to fund a new entity, a “Lawyers Division.” The central goal, Meyer wrote, was “to build an effective national conservative lawyers organization.” Meyer began the proposal by asserting that an alternative to “an increasingly radicalized bar,” exemplified by the American Bar Association, was now necessary because “lawyers continue to fill key positions in the modern instrumentalities of the welfare state.”
The Federalist Society promised the prospective donor that the Lawyers Division would have a “dual purpose.” First, to “an even greater extent than the activities of the student and faculty divisions,” the new division would “educat[e] lawyers on legal developments with ideological connotations and how to deal with them.” The second purpose was “the formation of groups of conservative lawyers in the major centers for the practice of law, who feel comfortable believing in, and advocating, conservative positions.” The division, Meyer wrote, would mimic the style of workshops and seminars hosted by bar associations: “Unlike those events, however, the panels will also have ideological overtones, picking topics where the developments are especially good and should be encouraged, or especially bad and should be stopped.” The proposal offered examples of these workshops. Seattle might focus on the problems posed by “Environmental Regulation”; in New York, “Banking Regulation”; and in Houston, “Employment Discrimination (including the question of whether reverse discrimination is even constitutional).” The proposal also mentioned the Lawyers Division potentially “making its own recommendation for judicial appointments.”
Simply put, when the Federalist Society was describing its mission in private to a politically sympathetic donor, it let drop the group’s public-facing fiction that it is merely a debating society for the organic development of ideas.
Asked about the document, Meyer wrote in an email to Politico Magazine that the sentences quoted from the proposal “do not even represent the gist of the proposal, let alone the Federalist Society as it has developed in the ensuing years” and that it is “silly” to treat them “as a serious source for what the Society is and does today or how the legal process, judges, and the public should understand what we do.” He reiterated that the society avoids “taking positions on legal or policy issues or engaging in other forms of political advocacy.”
But the Lawyers Division of the Federalist Society has grown into precisely the kind of policy-focused, ideological arm that its founders envisioned in that early grant proposal. The majority of presenters at Lawyers Division events—about 60 percent, according to research by one of us—are employed outside the academy, as federal judges, analysts at policy think tanks and interest groups, litigators, government attorneys, and state and federal politicians; they work in fields that deal with real-world policy applications and, as we have witnessed at Federalist Society events, often advocate specific policy outcomes. And from 1982 to 2011, nearly every presenter, moderator and panelist at the society’s national conventions for students and lawyers—its two biggest annual events—would identify as right of center politically, not just ideologically.
Federalist Society conferences, symposia and related activities have come to perform important functions for the Republican Party. Through these events, the society provides a forum for federal judges to “audition” for the Supreme Court with the goal of demonstrating they will not “drift” to the left like GOP-nominated Justices Harry Blackmun, David Souter and, to a certain extent, Chief Justice John Roberts. The auditioning function has proved (largely) successful. As has been widely noted, all five the GOP-nominated justices on the Court were active in the society before their nominations. Because membership in the Federalist Society has long been seen as a demonstration of ideological bona fides and a subscription to a package of ideas, prospective federal judges can use the group’s events to signal their fealty to the movement’s legal policy goals. Indeed, there is evidence that judges who are Federalist Society members are significantly more conservative on the bench than unaffiliated GOP nominees.
What’s more, as one of us has shown in previous work, Federalist Society events operate as an ideological feedback loop. These meetings allow federal judges both to educate their audience of law students and attorneys and be educated—on settled understandings of conservative and libertarian legal policy (e.g., gun rights and the dangers of the administrative state) and on new or heterodox potential paths (e.g., doing away with birthright citizenship or the budding courtship of natural law and originalism). That is, these gatherings have a disciplining effect on active and potential Republican judges: Conservative judges learn what the society collectively considers to be good decisions that “should be encouraged” and bad decisions that “should be stopped,” as envisioned in the 1984 grant proposal.
The Federalist Society does not stand alone in performing these types of service to a political party. It seems clear the revision to the Code of Conduct also applies to the Federalist Society’s liberal analog, the American Constitution Society. Established in 2001 by liberal law professors shocked and scarred by Bush v. Gore, the ACS also routinely hosts liberal federal judges at its conferences; they similarly audition for and are vetted by the liberal legal group. If the new mandate from the Judicial Conference is taken seriously, both the ACS and the Federalist Society should be “no-go zones” for federal judges.
But the Federalist Society is clearly the more powerful organization of the two, especially in this current administration. With the addition of the grant proposal to the public record, it’s clear: The Federalist Society is and always has been a political group, meaning active federal judges likely violate the revised Code of Judicial Conduct in attending Federalist Society events.
If the new advisory opinion is enforced, one can imagine the society or a federal judge suing on the grounds of free speech and freedom of association. And, as a testament to its success, the Federalist Society might get a sympathetic hearing from the very same judiciary it helped build.
Article originally published on POLITICO Magazine