The Federalist Society is More Relevant Now Than Ever According to Politics Professor Amanda Hollis-Brusky

Amanda Hollis-Brusky

Pomona College Professor Amanda Hollis-Brusky has spent years studying the conservative legal movement. In her 2015 book, Ideas with Consequences: The Federalist Society and the Conservative CounterrevolutionHollis-Brusky provided a comprehensive account of how the Federalist Society managed to revolutionize the jurisprudence for a range of important legal issues to counterbalance what its founders considered a liberal legal establishment.

To mark the recent updated paperback release of Ideas with ConsequencesHollis-Brusky, associate professor of politics at Pomona College, discusses in the following Q&A why the Federalist Society is more relevant now than ever in today’s political environment and how it’s shaping the future of the American judicial system.

How has the Federalist Society exerted its influence since its beginnings in the 1980s?

The Federalist Society has always been very strategic in how it's gone about trying to accomplish its mission. And its mission is to reorient, reshape the law and legal culture, legal education, to have the kind of conservative and libertarian thrust that its members believe the law ought to have.

There are two sides of the Federalist Society. One is the "ideas have consequences" side. And the "ideas have consequences" side really does believe that if conservative and libertarian ideas are introduced to law students in the early years as they're undergoing training and socialization as students, then those ideas will have force. And in the end those ideas will prevail.

The Federalist Society founders also recognized that in order for ideas to have consequences, you need access to people who have positions of power, who can implement those ideas into their decisions. And that's where the second phrase that embodies the Federalist Society comes from, which is "policy is people." 

These are the two phrases I heard a lot when I interviewed 40 or so members of the founding generation of the Federalist Society: "Ideas have consequences," and "policy is people." 

Given that we've had now three Republican administrations since the founding of the Federalist Society, four if you count Ronald Reagan, what we've started to see are the ways in which the Society has tapped into GOP lawmakers, built relationships with Republican presidents, and really intentionally cultivated a relationship with the Republican Party. That way, when Republicans swept into power as they did in 2016, those ideas that have been nurtured and developed within the Federalist Society have a real clear path to power.

How has the Federalist Society’s influence changed since the 2016 presidential election?

What we saw with the 2016 presidential race is pretty unprecedented. Prior to the Trump administration, the Federalist Society had worked by putting its people into the Department of Justice, into the Office of Legal Counsel, into clerkships, into lower federal court appointments, so that those who were doing judicial selection behind the scenes would then look to their fellow Federalist Society members. They were certainly a network and certainly an influence. The George W. Bush administration is a great example of this and I talk about that in the book. 

But with the current administration, then-presidential candidate Donald Trump took the unprecedented step of releasing a shortlist of potential Supreme Court judge nominees to fill the seat that was left vacant by the death of Justice Antonin Scalia. And Trump said (and I paraphrase) "This is a list that has the Federalist Society and the Heritage Foundation stamp of approval." As journalists have recounted, the list was in large part, constructed by Leonard Leo, the vice president of the Federalist Society. Leo then takes leave from the Federalist Society when Trump wins the presidential election, and is inside the White House to shepherd the judicial selection process from beginning to end.

That kind of open relationship of the Federalist Society with the Republican Party is a game-changer. I think it changes the way that everyone sees the Society. It's no longer working behind the scenes, kind of shadows and whispers, cloak and dagger. It really was, "Here's a list. If you vote for me, Republicans, I will put these people, these Federalist Society judges, on the court." And so, I really think 2016 was a break from past practice.

What are the pros and cons of the Federalist Society being so prominent?

One of the things that will be interesting to watch is the fall-out from the Federalist Society’s tight-knit and open relationship with the Trump Administration. And it’s already happening. For example, the Judicial Conference recently revised its Judicial Code of Conduct to prohibit sitting federal judges from attending organizations exactly like the Federalist Society. They do not name the Federalist Society, but if you read the language of the revised guidelines with the Judicial Code of Conduct, they're talking about the Federalist Society.

If the Federalist Society had done its work more quietly, the Judicial Conference may not have felt prompted to implement these kinds of reforms. But because the Federalist Society is now so openly identified with a political party, even though they say they're a debating society and they're open to membership from both parties (which is true, I was a member for a while and anyone can join the Federalist Society), watchdog groups and politicians are starting to pay more attention to them. What they’re seeing is that there are federal judges who are groomed by this organization, put into a list, handpicked by the vice president of the Federalist Society, to fill seats in the judiciary system. And then, these sitting judges are invited back to Federalist Society meetings to rub elbows with, network with, the very same lawyers who are trying to influence their decisions.

How does the Federalist Society get around the new guidelines of the Judicial Code of Conduct?

A colleague, Calvin TerBeek from the University of Chicago, and I wrote a piece for Politico in which we outlined how and why the Federalist Society (and other organizations like it on the left) violate the new Judicial Code of Conduct guidelines. In the process of writing that, Politico reached out to Eugene Meyer, the president of the Federalist Society. He used words like, "That's silly. We are and always have been about ideas. We're an open organization. We don't take policy positions. There's no way that this code applies to us." There was a Washington Post article by a former judge who said the Federalist Society should be a no-go zone for federal judges, to which Meyer again responded, "That's ludicrous."

There is more of an appetite now within the public sphere and within the Democratic- majority Congress to look more closely at what this relationship is and whether or not it's crossing a line. I don't know that this would've happened, number one, but for the election of Donald Trump and for the prominent role, and visible role, the Federalist Society has played in his administration.

How close is the Federalist Society’s relationship to the Republican Party?

What we're seeing, is that nearly every federal judge that had been selected by Donald Trump has ties and connections to the Federalist Society network. Gone are the days when there were Federalist Society-type judges and other Republican-appointed judges. Justice Anthony Kennedy was the last Republican-appointed judge who was not affiliated with the Federalist Society to serve on the Supreme Court. He has now retired and was replaced by Federalist Society loyalist Brett Kavanaugh. The Federalist Society now has five justices, all of whom have very clear and identifiable ties to the Federalist Society network. And as former Associate Justice William Brennan was fond of saying, the “Rule of Five” is the most important rule on the Supreme Court because “with five votes, you can do anything.” 

As a result of the Federalist Society’s Faustian bargain with the Trump administration, which is, "we will co-brand ourselves with you in order to get you elected because we know that the election means we'll have hundreds of seats to fill on the lower federal courts, at least one Supreme Court vacancy.” And as it turns out, it was two Supreme Court vacancies to date. That type of bargain could backfire because it's bringing more scrutiny to the organization and it's making it more difficult for them to plausibly claim that they're a nonpartisan organization that's just about ideas, not policy, not outcomes, not positions.

Besides filling judicial court vacancies, how else is the Federalist Society employing its influence?

Most people would now think about the Federalist Society really only in the context of judicial selection because that's the most visible activity that they've been engaged in. There are also Federalist Society lawyers all over the Department of Justice. When we think about this department and the role it's played, in particular vis-à-vis Trump and the allegations about Russian collusion, the department is tasked in a variety of ways with watching a president who may or may not be engaged in lawful activity.

When we think about law schools, this is an area where they have a lot of influence now. The Federalist Society is the only place to go to meet ideologically similar students and professors, if you're a right-of-center law student. On the left, there are so many organizations to get involved with that will more or less align with your political views and your fundamental values. On the right, there is only one, the Federalist Society.

The Society also plays an important role in the law schools for conservative and libertarian legal academics. Thanks to this, you have academics now working together through the Federalist Society trying to reshape constitutional meaning, constitutional interpretation and statutory interpretation. This creates what I call in the book “intellectual capital.” That intellectual capital can then be transferred to a Supreme Court justice or to a lower federal court judge looking to reshape the law in a conservative and libertarian direction.

Judges and justices are not sitting around thinking deeply about conservative jurisprudence. They rely on academics. That's the value-added of having access to legal academics. Therefore, the more aware they are of that legal academic work and the more easily they can find it, the easier it is for them to say, for example, "Okay, we can radically reshape the interpretation of the Commerce Clause because here are 17 articles I can cite in my judicial opinion that say that the Commerce Clause should be X, not Y." That way, the judge or justice doesn’t seem like an activist judge just saying, "I think that interpretation is wrong. So, I'm going to change it.” Instead they can point to all of these scholarly authorities and say, “Look at all these respected academics and their scholarship who agree with me that the Commerce Clause should be X, not Y.” 

This is one of the ways that Ideas with Consequences is still very relevant because it details those dynamics. It's not just about getting the right judges and justices on the court. Those judges and justices need lawyers to bring the right cases. They need them to have the right arguments and the right support for those arguments in order to believably or plausibly shift the law in a conservative and libertarian direction.

Is there a left of center organization that compares to the Federalist Society?

If you are a right of center lawyer and you want to be in the game for a clerkship, or an executive branch position, or a judgeship, there's only one game in town. It's the Federalist Society. If you're left of center, you can get deeply involved with the American Bar Association, the ACLU, the Southern Poverty Law Center, any number of bona fide, left-leaning organizations that will give you the kind of credentials you would need to be recognized by a Democratic presidential administration. It really is a competition problem on the left, whereas on the right, it's all been consolidated. The Federalist Society has a de facto monopoly on right of center legal talent.

That being said, there is one organization called the American Constitution Society which was founded as a response to the Federalist Society after Bush v. Gore. It's been around since 2000. It is identical in its structure to the Federalist Society. It has student chapters, it has lawyers' chapters, it has practice groups. So, it has mimicked the Federalist Society's institutional blueprint 100 percent. And at the same time, its first opportunity to have influence during the Obama administration, it didn't have the kind of monopoly on left of center judges that the Federalist Society has and right of center judges.

There were a few high-profile picks from the American Constitution Society such as Eric Holder for attorney general. But in terms of Obama's nominees for federal judges and Supreme Court justices, Sonia Sotomayor, for example, was virtually unknown within the American Constitution Society's circles.

What role does constitutional interpretation play in U.S. partisan legal circles?

One of the things I talk about in the book "Ideas with Consequences," is a lack of agreement about one theory of constitutional interpretation. 

The right, the Federalist Society, has gone all-in with originalism: the theory that the constitution should be interpreted according to its original meaning. There are variations within originalism, but you'd be hard-pressed to go to a Federalist Society meeting and find someone who does not identify as an originalist.

On the left, there are a variety of traditions coming out of years of intellectual ferment at the law schools, but no one tradition is so powerful that everyone who's left of center would say, "That is it. That is our judicial philosophy. We're going to only pick judges who adhere to this philosophy and then we're gonna be able to hold them accountable according to that judicial philosophy."

There are attempts for that project on the left. There is even a movement to co-opt originalism. Jack Balkin at Yale Law School has argued we should all be originalists. He wrote a book called "Living Originalism," which is supposed to combine kind of the evolutionary idea that a constitution should evolve. The idea that the original meaning of the constitution was that it ought to evolve. Thus we can take these fundamental concepts that were present, that's the originalist part, but then look at how they've evolved and apply to contemporary circumstances. But we're still originalists. But, there are others on the left say, "That's disingenuous. I will never be an originalist."

How is the Federalist Society and its power held accountable?

As I talk about in the book, once the judges and justices are on the bench, there's really no one or nothing to hold them accountable. They are appointed for life. No elections. Nothing short of impeachment, which is a blunt instrument.

What has happened over the course of the years, according to conservatives, is that good Republican judges were appointed, and good conservative judges were appointed. But then they got on the bench, and they moved to Washington DC, and they started hanging out with the liberal Georgetown set, and reading the liberal newspapers, and they read Linda Greenhouse's column in The New York Times, so they started to drift over to the left because those are the elite legal circles that are going to give them approval.

What the Federalist Society has tried to do is become an intentional counterweight to that. An alternative “judicial audience” is the term that Larry Baum uses in his book, "Judges and Their Audiences." Now we see that when the Federalist Society judges on the bench issue an opinion that is against Federalist Society orthodoxy, its members come out very vocally. Then those judges and justices may not be invited to hang out with their friends at the next National Lawyers Convention or they're told that their friends thought their decision was wrong.

This alternative judicial audience is also meaningful because no matter what happens in the next two election cycles, these judges and justices are going to be on the bench for 20, 30, maybe even 40 years. Thus that audience will continue to be important to hold those Federalist Society judges in check over the years.