The Federalist Society Read online

  THE FEDERALIST SOCIETY

  THE FEDERALIST SOCIETY

  How Conservatives Took the Law Back from Liberals

  Michael Avery and Danielle McLaughlin

  Vanderbilt University Press

  NASHVILLE

  © 2013 by Vanderbilt University Press

  Nashville, Tennessee 37235

  All rights reserved

  First printing 2013

  This book is printed on acid-free paper.

  Manufactured in the United States of America

  Library of Congress Cataloging-in-Publication Data on file

  LC control number 2012031471

  LC classification number KF294.F43A94 2012

  Dewey class number 349.7306--dc23

  ISBN 978-0-8265-1877-4 (cloth)

  ISBN 978-0-8265-1879-8 (e-book)

  For my children, Katherine, David, and Samantha.

  My love for them knows no bounds.

  —Michael Avery

  For my parents, Adam and Patti McLaughlin,

  who taught me that anything is possible.

  —Danielle McLaughlin

  CONTENTS

  Preface

  Introduction

  1. The Network: The White House, The Department of Justice, and The Bench

  2. Regulation of Private Property: The Takings Clause

  3. Regulation of Private Property: Access to Justice

  4. Race and Gender Discrimination

  5. The Jurisprudence of Personal Sexual Autonomy

  6. American Exceptionalism, Sovereignty, and International Law

  Appendix A: A Brief Guide to Legal Citations

  Appendix B: Federalist Society Members and Allies

  Notes

  Index

  PREFACE

  This is a book about the power of ideas. The Federalist Society has been extremely effective over the past thirty years in translating the intellectual capital of its members into law and policy. We have traced the development of the ideas of society members from articles, books, panels, and debates into legislative proposals, citizen referenda, legislation, legal briefs, court opinions, and White House policy. We have followed key Federalist Society members from law schools into private practice, public interest law firms, the Department of Justice, and the White House, as well as onto the bench. Our narrative is primarily based on what the subjects of our study have said and written, the ideas they have propagated and embraced, and the ideas that they have rejected.

  We wrote this book to shine a light on the forces at play in the making of law and policy in the United States. There is much that citizens from all points on the ideological spectrum can learn from the story of the Federalist Society. We also hope, as the story unfolds, that our readers will stop to think about what they believe the Constitution stands for, how it should be interpreted, and its influence on their lives.

  To do justice to the ideas and the considerable scholarship of our subjects, it is necessary to discuss in some detail political philosophy, Supreme Court jurisprudence, and legal doctrine. We have tried to explain the law and the history of legal doctrine in the Supreme Court in a common-sense way, and have tried to steer a middle course between the lengthy footnotes that legal writing demands and the dearth of footnotes often found in popular publications. To assist the reader further, we provide an explanation of how legal citations work in Appendix A.

  Many of the members of the Federalist Society who have had great influence over law and politics are relatively unknown to members of the general public. We supply an alphabetical list and basic information about important Federalist Society members and allies in Appendix B.

  We conducted the research by reviewing the voluminous written work of Federalist Society members and allies, transcripts and recordings of panels and symposia, legal briefs and court opinions, government reports, contemporary published accounts of the activities of the Federalist Society, and existing scholarship regarding the conservative legal movement. We also attended Federalist Society conferences and meetings. The society posts a great deal of the output of its members on its website (fed-soc.org), including videos of speeches and panels. We have based our analysis on the public record rather than on private interviews, with the exception of some statements that Federalist Society members have made to other researchers.

  This book consists of chapters on substantive areas of law where Federalist Society members have been active, including property law, international law, privacy, race and gender discrimination, and access to legal remedies. We also discuss the success the Federalist Society has enjoyed in getting its members and other conservative lawyers appointed to influential positions in government. There are many more areas of law for which a similar analysis would yield interesting results, such as administrative law, intellectual property law, and criminal law, but we leave those for others to investigate.

  We are grateful to the many people who supported and assisted us in the preparation of this book. Margaret Hagen, Brett Haywood, Katie Powell, Rebekah Provost, Dave Samuels, and Charu Verma were students at Suffolk Law School who conducted invaluable research. David Avery assisted with cite checking. Suffolk Law School legal reference librarians Diane D’Angelo, Steve Keren, and Susan Sweetgall were very helpful in providing research advice and obtaining necessary materials and resources. We appreciate the critical insights provided by the lawyers and professors who read drafts of some of the chapters, including Nan Aron, Marie Ashe, Mark Brodin, Barry Brown, Lee Cokorinos, Sara Dillon, Steven Ferrey, Robert Friedman, Sheldon Goldman, Page Kelley, David Murphy, Natsu Saito, Elizabeth Trujillo, and Hazel Weiser. Helene Atwan, director of Beacon Press, and attorney Ike Williams read early drafts of the manuscript and generously gave us advice about how to proceed with our project.

  Suffolk Law School provided Michael Avery with a sabbatical semester and summer writing stipends to do much of his work on the project. The staff at the Harvard Law School Library provided Danielle McLaughlin with invaluable research resources. Chip Berlet and his colleagues at Political Research Associates made their superb library available to us. We are extremely grateful for the support, assistance, and advice from our families, friends, and colleagues, who are too many to name, but to some we are especially indebted. Michael Avery would like to thank the many students in his constitutional law classes over the years whose interest in the subject was a principal motivation for doing this book. Danielle McLaughlin would like to thank Brendan Hall for his unfailing encouragement and support. Any mistakes that remain in this work are entirely our responsibility.

  INTRODUCTION

  Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the legal community have dissented from these views, no comprehensive conservative critique or agenda has been formulated in this field. This conference will furnish an occasion for such a response to begin to be articulated.

  —Steven Calabresi, Lee Liberman, and David McIntosh, statement of purpose for “A Symposium on the Legal Ramifications of the New Federalism”1

  You are more likely to convince people of your viewpoint if they feel the other side has been given a fair hearing.

  —Liberman and McIntosh, in an early Federalist Society guide on how to establish campus chapters2

  In 1980, Steven Calabresi, Lee Liberman [Otis], and David McIntosh were young, conservative law students—Calabresi at Yale, and Liberman and McIntosh at the University of Chicago—alienated from the prevailing political orientation of their classmates and their schools. Their professors’ ideologies, for the most part, reflected the dominance of liberal politics in the sixties and seventies. The New Deal, the civil rights movement, and the Great Society antipoverty programs had led to widespread faith that government could and should supply the solutions to the country’s social, political, and economic problems. Calabresi, Liberman, and McIntosh disagreed, believing that big government posed a fatal threat to individual rights and the sanctity of private property. In their view, the liberals had distorted important constitutional principles. The three law students started to raise questions.

  Over the next thirty years, the questions they and their conservative colleagues would raise identified many of the crucial issues of twentieth-century America. What is the appropriate balance between an individual’s right of self-determination and the powers and responsibilities of government? Should Americans pursue collective or individual solutions to social problems like poverty, care of the elderly, and education? How much regulation of private property and economic behavior is appropriate in a capitalist, free-market country? Is racial and gender diversity in education and employment an appropriate goal for government to pursue and what means are acceptable for achieving it? In the face of increasing economic and social globalization, what is more important—protecting national sovereignty or establishing international norms? Should judges interpret the U.S. Constitution to keep pace with the moral, economic, and social tenor of the times, or should they read the text in the light of its eighteenth-century meaning unless it has been formally amended?

  The law students not only began to ask these questions, they began to answer them. And they began to organize. Chief Justice John Roberts’s law clerk, George Hicks, described the conservative students at Harvard Law School in the early eighties as “ideological outliers who struggled to gain credibility in class and acceptance on campus.”3 Soon enough, however, they got help
from conservative professors who were themselves struggling with the prevailing liberal ideology of their colleagues. Professors Ralph K. Winter and Robert Bork helped Calabresi start the Federalist Society at Yale, and Professors Antonin Scalia, Richard Epstein, Richard Posner, and Frank Easterbrook were advisors to Liberman and McIntosh at Chicago. A couple of years earlier, Spencer Abraham and Steven Eberhard, students at Harvard Law School, had started the Harvard Journal of Law and Public Policy as a vehicle for conservative ideas. Eventually this would become the official law journal of the Federalist Society.

  The Federalist Society’s first major event was a symposium on federalism in April 1982. It was cosponsored by the Yale and Chicago law school groups, the Harvard Journal of Law and Public Policy, and a similar group at Stanford Law School, the Stanford Foundation for Law and Economic Policy. The Institute for Educational Affairs, the Olin Foundation, and the Intercollegiate Studies Institute funded the conference.4 The seminar was a huge success, and the Yale and Chicago law students soon began assisting conservatives on other campuses with the organization of their own Federalist Society chapters. At the time of the society’s inception, conservative law students felt isolated in an academic world dominated by a liberal mindset; the fledgling Federalist Society provided “a social club for students to come comfortably out of the political closet.”5

  Within one year of the first symposium, there were seventeen Federalist Society chapters, all on law school campuses.6 The society grew continuously over the next several years. By 2000, former federal appellate judge Abner Mikva, a liberal, would say, “Where so many of the nation’s leaders are groomed, the Federalists manipulate the landscape. It was once held that liberals ran the law schools. The liberals had the name but the Federalists own the game. For students on the go, there is nowhere else to go.”7 At that point, the society had 25,000 members, lawyers chapters in 60 cities, and law school chapters on 140 campuses.8

  Today the Federalist Society for Law and Public Policy Studies claims that over 45,000 conservative lawyers and law students are involved in its various activities. There are only approximately 13,000 dues-paying members, however.9 Four Supreme Court justices—Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito—are current or former members of the Federalist Society.10 Every single federal judge appointed by President George H. W. Bush or President George W. Bush was either a member or approved by members of the society. During the Bush years, young Federalist Society lawyers dominated the legal staffs of the Justice Department and other important government agencies. The dockets of the federal courts are brimming with test cases brought or defended by Federalist Society members in the government and in conservative public interest firms to challenge government regulation of the economy; roll back affirmative action; invalidate laws providing access to the courts by aggrieved workers, consumers, and environmentalists; expand state support for religious institutions and programs; oppose marriage equality; increase statutory impediments to women’s ability to obtain an abortion; defend state’s rights; increase presidential power; and otherwise advance a broad conservative agenda.

  There are Federalist Society lawyers chapters in every major city in the United States, and in London, Paris, Brussels, and Toronto. It has established student chapters at every accredited law school in the country (as well as at a handful of unaccredited law schools, and at the business schools at Harvard and Northwestern). It has also recently launched law school alumni chapters, to enable alumni to better reconnect. With revenues of $9,595,919 in 2010, the 75 lawyers chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and community members.11 The Federalist Society’s membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, many of whom disagree with each other on significant issues, but who cooperate in advancing a broad conservative agenda. As professors on the faculties of law schools, its members have succeeded in gaining respect and traction for conservative legal ideas, which stem in large part from an originalist interpretation of the Constitution. Academics associated with the Federalist Society have not only educated a new generation of conservative law students but played a role in the rise of openly conservative law schools such as Pepperdine and George Mason. The high point for Federalist Society influence in government was the second term of George W. Bush. By the time President Bush left office, what had begun as a counterestablishment movement had become the establishment.

  The Federalist Society has been described as “quite simply the best-organized, best-funded, and most effective legal network operating in this country.”12 Although its leaders have described the group as an intellectual forum, operating above the fray of government, the academy, and the private sector, there can be no doubt that many of its members have wielded extraordinary influence in all these arenas.13 Professor Jerry Landay’s account of the 1999 Federalist Society National Lawyers Convention at the Mayflower Hotel in Washington, D.C., gives us some flavor of the organization at that time:

  Tonight at the Mayflower you get a sense of just how powerful and far-reaching the Society is. There are stars from every corner of the Republican establishment in the room. From snippets of conversation, one concludes that they are joined not only at the ideological hip but by a collective hatred for President Clinton—perhaps more for standing in the way of their Revolution than for any moral or legal lapses. Members of Starr’s old team like constitutional law advisor Ronald Rotunda (who counseled Starr that he could indict a sitting president) rub shoulders with old-timers from the Reagan administration—former Attorney General Edwin Meese, Solicitor General Charles Fried, and Civil Rights commissioner Linda Chavez—and with former Bush White House Counsel C. Boyden Gray. The room bulges with partners from among the most powerful law firms in the land. . . . And then there are the judges. No fewer than eight federal judges, most of whom are still active on the bench, will sit on panels or speak from the podium during this three day affair.14

  This book describes how the Federalist Society grew from a small student organization into a dominant force in law and politics. Primarily, this book is about the power of ideas. Analyzing five substantive areas of the law, it identifies ideas about the Constitution, government, and individual rights that were created, adopted, and proliferated by the Federalist Society and its members. It demonstrates how those ideas have taken hold in the mainstream of legal thought and contributed to the creation of law and policy. The society’s success is due to the extraordinary network it has created, the support it receives from wealthy conservative patrons (whose agendas it advances), and the intellectual work that its members have done. The Federalist Society has created an interdependent network of conservative think tanks, public interest law firms, prominent lawyers, elected representatives, judges, and law professors. To fuel this network, the leading Federalist Society members publish prolifically. The sheer output of speeches and the number of conferences and debates at which they promote their views is staggering.

  Their success demonstrates the truth of Sidney Blumenthal’s argument that “ideas themselves have become a salient aspect of contemporary politics.”15 The adoption of the ideas of Federalist Society members in briefs, court opinions, foreign policy, and municipal, state, and federal legislation has been unprecedented in speed and scope. Former vice president Dick Cheney has said that the Federalist Society “changed the debate.”16 Abner Mikva has characterized the society as a once-small “band of legal conservatives” whose ideas, at the time they began organizing, were “scorned by academics, ignored by judges and unknown to the public” but who ultimately succeeded, persevering to “build a powerful movement and reshape our world according to their notions.”17

  Yet the critical role that the Federalist Society has played in the resurgence of conservatism is largely unknown to the general public and has only recently become the object of academic study. Even in law schools, for the most part students study Supreme Court cases and legal doctrine without considering who filed the cases, who paid to litigate them, and whether the ideology of the judges who presided over them had an effect on the outcome. The fact is that much of what may have appeared as a haphazard or spontaneous legal development to a casual observer over the past two decades has been the result of deliberate tactics and a finely honed strategy to move the law in a conservative direction.