Conquerors of the Courts
It’s rush hour on a November evening in Washington’s busiest regional rail hub, but swarming commuters must yield to a much more potent tide. The Federalist Society has taken over the Main Hall of Union Station for its annual black-tie gala. The stone walls of the vast, vaulted concourse are bathed in pale red and blue, while larger-than-life white spotlight cameo silhouettes of James Madison’s head — the society’s trademark — crown the columns and glow on video screens. Two hundred and twenty sold-out tables, each set for 10, await the throng funneling through a block-long tent, where $200-a-plate tickets are checked; inside, exclamations of celebration and reunion echo and blend into a deafening roar.
Even when the crowd simmers down, it’s so hard to hear in the cavernous hall that the words of retiring Sen. Orrin Hatch of Utah — who is receiving an award — are mostly lost to history. “Whatever he’s saying, I’m sure it’s good,” says Lew Olowski, who, like me, has crept closer to try to hear. He was a human rights activist studying at Georgetown Law a decade ago when, he tells me, joining the Federalist Society expanded his mind to see both sides of issues. Now he’s general counsel for an organization helping poor pregnant women get a leg up and, not incidentally, keep their babies. His ears prick up at isolated morsels of Hatch’s talk: “… religious freedom … administrative state. …” “See what I mean?” Olowski says. “Music to my ears.”
There is much for this crowd to celebrate. The conservative and libertarian society for law and public policy studies has reached an unprecedented peak of power and influence. Brett Kavanaugh, whose membership in the society dates to his Yale Law School days, has just been elevated to the Supreme Court; he is the second of President Trump’s appointees, following Neil Gorsuch, another justice closely associated with the society. They join Justice Clarence Thomas (who said last spring he’s “been a part of the Federalist Society now since meeting with them … in the 1980s”), Chief Justice John Roberts (listed as a member in 1997-98) and Justice Samuel Alito (a periodic speaker at society events). The newly solidified conservative majority on the court will inevitably decide more cases in line with the society’s ideals — which include checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning. In practice, this could mean fewer regulations of the environment and health care, more businesses allowed to refuse service to customers on religious grounds, and denial of protections claimed by newly vocal classes of minorities, such as transgender people.
But having allies on the highest court of the land is just the top layer of the Federalist Society’s expanding sway. For one thing, there is thejudicial nomination process itself. When Trump was campaigning in 2016, he made the shrewd and unorthodox move of publicizing a list of 11 conservative legal stars that he promised to draw from if he got a chance to pick a Supreme Court justice. Leonard Leo, executive vice president of the Federalist Society, played a key role in suggesting the names, along with Trump’s future White House counsel, Don McGahn (also a society member), and the conservative Heritage Foundation. The list was expanded twice to include Gorsuch, Kavanaugh and others. Leo took a leave from his job at the Federalist Society to advise the White House on the confirmation process for Gorsuch and Kavanaugh — reprising a role he played for the George W. Bush White House in putting Roberts and Alito on the court.
The next most important segment of the judiciary — the federal appeals courts — is also filling up with Federalist Society members: Twenty-five of the 30 appeals court judges Trump has appointed are or were members of the society. “Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges,” McGahn quipped to a Federalist Society gathering in 2017. “That is completely false. I’ve been a member of the Federalist Society since law school. Still am. So, frankly, it seems like it’s been in-sourced.”
Kavanaugh, Gorsuch, Alito and Thomas are all at the banquet — a record turnout of Supreme Court justices for the annual affair. There’s also a trio of Trump’s once and future Justice Department leaders: Deputy Attorney General Rod Rosenstein (alumnus of the Federalist Society’s Harvard Law School chapter), recently fired attorney general Jeff Sessions (frequent society speaker) and acting attorney general Matthew Whitaker (recommended by Leonard Leo to be Sessions’s chief of staff). It’s as if the players in the recent melodramas surrounding the Justice Department are minor actors compared with the Federalist Society itself — which provides the enduring climate within which storms on the right come and go.
To close the gala, McGahn and Senate Majority Leader Mitch McConnell settle in armchairs below the giant Madison heads for an onstage tete-a-tete, during which they all but spike the football over the current pace of appointing conservatives to all levels of the federal judiciary — the “judges project,” as McConnell calls it. At the appeals court level, in particular, Trump has made more appointments than all other presidents at the same point in their presidencies, according to research by Russell Wheeler, a visiting fellow in governance studies at the Brookings Institution. (At the district court level, however, Trump’s pace lags behind that of George W. Bush and Bill Clinton.) “My goal … is to do everything we can for as long as we can to transform the federal judiciary, because everything else we do is transitory,” McConnell says. “The closest thing we will ever have an opportunity to do to have the longest impact on the country is confirming these great men and women and transforming the judiciary for as long into the future as we can.” McConnell notes that the judges list played a big part in getting Trump elected. The majority leader looks out over the gathering almost mistily as he concludes: “I hope you are proud of what we’ve done.”
As pumped as anyone is Olowski, watching with me from the side. But to understand what the Federalist Society has achieved and where it’s headed, he advises me to look beyond the scorecard of confirmed judges — and to instead consider the intellectual sparring and professional grooming going on at Federalist Society chapters and forums across the land.
This advice resonates with what I had been picking up over a couple of weeks of conversations with people in and around the organization: Much of the Federalist Society’s influence comes not from its very public Washington victories but from its behind-the-scenes, grass-roots ability to shift the law at the idea level, even the cultural level. And so, a glimpse of the impact yet to come could be had at far tables fanning out to the corners of Union Station where the sound is bad — the law students and professors from Houston, Boston and Los Angeles; the young lawyers at the dawn of long careers scarfing fancy food at tables underwritten by their firms. “Let the politicians build the coalitions” to confirm conservative judges and roll back the administrative state, Olowski says. “That’s not the Federalist Society’s job. The Federalist Society’s job is to put these ideas out there.” And of course, as James Madison could tell us, ideas tend to outlive presidents, political majorities and even judges.
The original ambition was not so grand. A handful of conservative law students at the University of Chicago, Yale and Harvard in the early 1980s wanted an outlet for their maverick notions of the law amid the liberal domination of the legal academy. “When we started the Federalist Society, we didn’t know we were starting the Federalist Society,” Lee Liberman Otis, one of the Chicago co-founders, told me. “We thought we were starting groups at each of our law schools. … ‘Let’s start something where we could talk about those ideas.’ ”
The students announced a national symposium to be held at Yale in the spring of 1982. Word spread ahead of the conference, and so many letters came from students at other schools asking how to start a chapter that Otis says she and another co-founder quickly drafted a guide. Daniel Kelly was a senior at the College of the Holy Cross and applying to law school when he heard about it. Thrilled at the prospect, he and some friends drove 100 miles from Worcester, Mass., to New Haven, Conn., and slept on the floor of a friend’s Yale dorm. “They were saying something that seemed completely plain sense and true to us,” Kelly recalls, “which is when you look at the Constitution, you should look at the way the framers wrote it and interpret it as best you can based upon the intention of the framers.” Kelly is now head of the Federalist Society lawyers chapter in Boston, where, in late October, Sessions gave one of his last speeches as attorney general.
Speakers at that first symposium included future justice Antonin Scalia, who was then a law professor at the University of Chicago and a mentor to the campus Federalist Society chapter. Choosing as his topic “The Two Faces of Federalism,” Scalia presumed that his audience was on a mission to influence national policy, and so he told the gathering: “I urge you, then — as Hamilton would have urged you — to keep in mind that the federal government is not bad but good. The trick is to use it wisely.”
Much of the Federalist Society’s influence comes not from its very public Washington victories but from its behind-the-scenes, grass-roots ability to shift the law at the idea level, even the cultural level.
Another speaker was future solicitor general Ted Olson, who was then an assistant attorney general in the office of legal counsel. “I didn’t have any idea how far it would go or what it would become,” Olson told me, “but I did feel at the time … this is something interesting happening here.” In his address to that first symposium, he said: “I sense that we are at one of those points in history where the pendulum may be beginning to swing in another direction. Of course, we do not know now, and no one will really know until many years from now, whether the 1980 elections have wrought a significant and long-lasting change. But I think that there is an opportunity here; and the organization of this society and this symposium is a cause for optimism and a sign that perhaps something is happening.”
From there, the story of the Federalist Society’s influence became the story of approximately 70,000 random epiphanies. That’s roughly the number of active participants in the society today, according to its leadership. My admittedly unscientific sample of a dozen Federalists’ personal stories — backed up by political scientists’ more systematic research into the question — suggests that each individual Federalist is akin to an excited synapse in a sprawling hive mind with no one actually in charge.
“I have a very distinctive beginning story,” Randy Barnett told me over eggs at a diner in Logan Circle a few days before the society’s annual national convention in November. “There was no Federalist Society when I was a law student, so I didn’t know anything about it. I heard about it, and my impression of it was it was going to be a very right-wing organization, and I’m a libertarian — I’m not a conservative.”
Today, Barnett is a professor of constitutional law at Georgetown and an influential voice in the legal wars over the Affordable Care Act, medical marijuana and the like. But his first encounter with the Federalist Society came in 1986, two academic postings ago, when he was a relatively junior professor at Chicago-Kent College of Law. A student invited him to speak on a panel at one of the early Federalist Society national student symposiums. Barnett was reluctant because he thought his perspective would be unwelcome, and anyway, he taught contracts, not the Constitution. But he was ambitious enough to want to rub shoulders with the legal celebrities who would also be invited. So he said yes.
Liberal legal advocates and scholars realized they were in a serious battle for the law with the Federalist Society after the Supreme Court decided Bush v. Gore in 2000, handing the White House to George W. Bush. Peter Rubin, then a professor at Georgetown, founded the American Constitution Society to win hearts and minds of students, lawyers and judges.“Peter, among others, saw Bush v. Gore and recognized that we’d been snookered,” Caroline Fredrickson, president of the ACS, told me. “The left had been sleeping on its laurels, still living in the Warren Court and all of the sudden we were going to have the Roberts Court. And so the idea was to found an organization that would help organize progressive lawyers to protect the core fundamental values that we see in the Constitution.”
Imitation is the sincerest form of flattery, and a measure of how much the Federalist Society had already shifted frames of reference was the liberal response. “ACS was very explicitly founded to do the same kind of work that the Federalist Society has done,” Fredrickson says. “We, too, have chapters across the country. … We also organize events. We have a group of scholars and experts who work with us on efforts to explain the Constitution and our laws to the broader public.” But the ACS still lacks the reach of the Federalist Society, as measured in chapters and budgets. Fredrickson attributes the gap to legal institutions and opportunities on the left being more diffuse than on the right. Also: “They do get a lot more corporate support than we do because it’s in the interest of the corporations,” she says. “They want to get rid of regulations.”
The traditional liberal response to the Federalist Society has included pointing out how suspiciously convenient it is that the jurisprudence advocated by society members so often yields conservative results. The conservatives reverse-engineered their preferred methodologies of interpreting the Constitution and legal statutes to reach the ends they want, goes this line of attack. Those methodologies are known as originalism and textualism because they are said to be founded in a search for the original meaning of the Constitution and the literal texts of legal statutes.
But more recently another liberal position has emerged, and it shows what the Federalists have achieved. This position might be summed up as: If you can’t beat them, join them — methodologically, at least. A number of liberal scholars have applied themselves to the task of showing how, in fact, originalist approaches can yield progressive results. As this train of thought has flowed out of the academy, liberal originalist logic is, more and more, showing up in legal briefs and even in Supreme Court dissents. Advocates of all stripes know they must be ready with textualist arguments because, thanks in large part to the work of the Federalists, it’s more likely than ever that the judge deciding a case will want to hear that perspective.
“For too long progressives were ceding that constitutional ground to the right and organizations like the Federalist Society,” says Elizabeth Wydra, president of the Constitutional Accountability Center, a progressive think tank and law firm that fashions originalist arguments. “When you actually look at the text and history of the entire Constitution, particularly focusing on the transformative amendments that were enacted in the wake of the Civil War, you really see an arc of progress that pushes our country toward inclusion, equality and greater democracy that tells a very different story from a lot of what the folks on the right, including the Federalist Society, would have you believe about our Constitution.” The CAC has made originalist arguments in favor of same-sex marriage, affirmative action and abortion rights. Its position is that those rights are guaranteed by a textual and historical understanding of the original meaning of the 14th Amendment’s equal protection clause. The CAC also is using an originalist reading of the foreign emoluments clause as it represents members of Congress who claim Trump is unconstitutionally benefiting from foreign payments.
Even Federalists come down on both sides of some of these questions. In 2013, years after he spoke at the founding Federalist Society symposium, and after he won Bush v. Gore, Ted Olson returned to the Supreme Court to overturn a California proposition banning same-sex marriage. For their part, many liberal scholars and lawyers continue to reject originalism in favor of a vision of the Constitution flexible enough to embrace changing times and evolving notions of human rights. Still, even critics of originalism are forced to acknowledge the new reality: “Despite recent work demonstrating the bankruptcy of these [originalist] approaches, liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories,” Richard Hasen, a professor of law and political science at the University of California at Irvine, wrote recently in Slate.
Leonard Leo told me he disputes the notion that the Constitution contains either conservative or progressive values, and he denies that originalism is rigged to reach conservative and libertarian results. “The Constitution is a structural road map for how to ensure accountability and transparency in government,” he said. “And there are timeless values in it that are tied to the weaknesses of human nature and the danger of unlimited authority being vested in one person or a group of people. … You’re practicing originalism appropriately when you’re doing so without looking behind the curtain and trying to predetermine results.”
But he welcomes liberals to the Federalist Society’s jurisprudential worldview: “There are liberals who work really hard at trying to develop a neutral, originalist approach to interpretation,” he said. “The fact that people may come out differently occasionally — that’s okay. Half the battle is just agreeing that it is essential.”
Back at the black-tie gala in Union Station — as McGahn and McConnell conclude what can only be described as a sedentary victory dance; as the four Federalist-friendly justices disperse into the night; as deputy AG Rosenstein and acting AG Whitaker linger for pictures with groups of giddy fans — I ponder: What now? Having reached this summit, what’s left for the Federalist Society to conquer?
I found some clues during the three days of the national convention at the Mayflower Hotel that bookended the gala. The “judges project” is still clearly in high gear, and with two sitting Supreme Court justices in their 80s — Ruth Bader Ginsburg, 85, and Stephen Breyer, 80 — there’s an incentive to keep the list of candidates fresh. Numerous candidates-in-waiting were on display at the conference. I counted 24 appeals court judges on the program — including 15 just elevated by Trump — and at least 11 of the names on Trump’s expanded list of potential Supreme Court nominees were scheduled to participate over the three days.
Some of the judges were treated as rock stars, especially Amy Coney Barrett, named by Trump to the 7th Circuit. More than one convention speaker got a rise out of audiences by recalling Democratic Sen. Dianne Feinstein’s gaffe of telling the Catholic Barrett during her confirmation hearing that “the dogma lives loudly within you, and that’s of concern.” The lunchtime panel on stare decisis (the legal doctrine that calls for courts to respect precedent) was full — and several attendees told me it wasn’t the topic that drew them, it was the presence of Barrett moderating the panel. “Judge, welcome back to Washington — and I hope you’ll come back for good sometime soon!” one of the panelists, Kannon Shanmugam, an appellate advocate and partner at Williams & Connolly, said to Barrett, drawing cheers from the audience.
In hallways and during panels, networking continued to mix with intellectual ferment. I ran into Josh Blackman, the Texas professor and blogger; he was scheduled to be on a panel where he would urge judges to tweet more and make decisions easier to search online. “All the action does go on in the hallway,” he told me. “At dinner last night I met with friends old and new who had things they wanted to tell me, things they wanted me to think about, things I want to write about. As long as you have your eyes and ears open, you always are able to connect in new ways.”
Checking out a number of panels, I was impressed that, true to its claim, the Federalist Society really had invited capable liberal advocates to try to rebut conservative perspectives. “People always treat me politely in these circumstances, but they always look at me in bemusement about how wrong I am,” W. Neil Eggleston, former White House counsel for Obama, quipped during the session on stare decisis. He cautioned the newly empowered majority on the Supreme Court against overturning landmark decisions such as Roe v. Wade just because it could with slim 5-to-4 majorities.
Meanwhile, for all the Federalist Society’s steamrolling progress on display, I detected a sign of tension that may, too, carry into the future. Near the conclusion of the gala, while McGahn and McConnell are still gloating, I notice a figure standing at a high-top with a drink in the bar area. It’s George Conway III, husband of Trump communications counselor Kellyanne Conway. George is surrounded by some friends, and none of them is paying much attention to McGahn and McConnell.
George Conway’s Federalist Society pedigree is impeccable. He has been a member since 1984 — two years after the founding symposium — and he serves on the society’s board of visitors. But he has also publicly criticized his wife’s boss’s actions on occasion. And he shook the conservative legal establishment when, just before the convention, he and a group of conservative and libertarian lawyers announced the formation of a group called Checks and Balances because, they said, Trump threatens the rule of law. George Conway had even told the New York Times that “there’s a perception out there that conservative lawyers have essentially sold their souls for judges and regulatory reform.”
As I approach, Conway is being congratulated by people coming up from all sides.
“Checks and Balances!” says one admirer.
“Isn’t it great?” says Conway.
“How’s Kellyanne feeling?”
“Ah, she could do without it.”
Another, much younger lawyer approaches.
“I got that email,” he says.
“You going to come?” asks Conway, referring to a recruitment meeting planned for the next day.
“I already put the word out.”
Turning to me, Conway says: “That’s one of the young people who just loves what we’re doing. … He’s a recent law school graduate, a few years out, and a clerk for a really prominent judge here in the District. … The younger people really feel it, and their view is: This will end, the current era. And they’re going to be around a long time, and they’re not worried that it’s going to affect their careers.”
Checks and Balances, as Conway explains it to me, is not an attack on the Federalist Society but a reminder of the core principles the society has stood for ever since that band of students gathered at Yale. And now, here in a corner of the vast, tingling network, another connection is being made.