How Conservatives Captured the Law
From the liberal trade paper of academia: The Chronicle of Higher Education
Note: I am posting the entire article because much of The Chronicle cannot be accessed off campus.
How Conservatives Captured the Law
With a Democratic president beginning his second term in the White House, swinging a more liberal bat than he had in his first term, the conservative legal movement in academe is upping its game.
In January the Legal Studies Institute, a program of the Fund for American Studies, in Washington, solicited law professors across the country to nominate top students for summer internships. The institute's program and board feature leading members of the Federalist Society for Law and Public Policy Studies, including Peter Redpath, vice president and director of the society's Student Division. LSI's elegantly designed brochure features photographs of federal and state judges and leading conservative academics in earnest conversations with law students. The institute guarantees an internship, reminds students that "who you know does matter," and offers a course, "Originalism and the Federalist Papers." Past speakers include Justice Antonin Scalia.
In early February, the libertarian Cato Institute sent law professors an e-mail inviting them to subscribe to periodic notices about potential course materials, like Liberty of Contract, Gun Control on Trial, and the institute's annual Supreme Court Review. Later that month, the Federalist Society sent a brochure to law professors, touting the benefits of membership in its Faculty Division and the variety of programs for law faculty, including the Olin-Searle-Smith Fellows in Law, which offers "top young legal thinkers" a year with an office at an elite law school to pursue their research, a $60,000 stipend, and health benefits. The inside cover of the brochure shows Justice Scalia speaking at the Federalist Society's 25th-anniversary gala, regaling the audience with an exultant metaphor: "We thought we were just planting a wildflower among the weeds of academic liberalism, and it turned out to be an oak."
The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer 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 others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.
The Federalist Society's membership includes many brilliant and sincere theorists who raise important and interesting issues. On the other hand, the society's critics say, its overall impact is reactionary. By glorifying private property, demonizing government intervention (particularly at the federal level), insisting that originalism is the only legitimate method of constitutional interpretation, embracing American exceptionalism as a reason to remain apart from global governance, and pushing related policies, these critics say, the society advocates a form of social Darwinism that has been discredited by mainstream American legal thought since the 1930s.
Membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, many of whom disagree with one another on significant issues, but who cooperate in advancing a broad conservative agenda. They generally support individual rights and a free market, and prefer states' rights to action by the federal government.
Members have held senior policy making positions in the Reagan, George H.W., and George W. Bush administrations; have a commanding presence on the federal bench; and, as private lawyers, advocates in public-interest law firms, and government lawyers, challenge laws that are anathema to their worldview. The dockets of the federal and state courts (including the Supreme Court) are brimming with test cases brought or defended by Federalist Society members 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; and otherwise advance conservative ideas.
Academics associated with the Federalist Society have educated a new generation of conservative law students, played a role in the rise of openly conservative law schools like Pepperdine's and George Mason's, and succeeded in gaining respect and traction for conservative legal ideas. Those stem in large part from an originalist interpretation of the Constitution, exemplified by the jurisprudence of Justice Scalia. That view posits that to interpret the Constitution, one must search for the original meaning of its provisions. The argument is that the original meaning of words may be objectively determined by recourse to historical sources that reveal how the words were used at the time, and that the original meaning is the only legitimate method of interpreting the document.
In 1980, Steven Calabresi, Lee Liberman, and David McIntosh were young conservative law students at Yale and the University of Chicago. They were alienated from the prevailing liberal political orientation of their classmates and their schools. The New Deal, the civil-rights movement, and the Great Society antipoverty programs had led to widespread faith that government could and should solve the country's social, political, and economic problems. Calabresi, Liberman, and McIntosh thought otherwise, believing that big government posed a fatal threat to individual rights and the sanctity of private property. In their view, liberals, in pursuit of their social agenda, had distorted important constitutional principles.
Conservative philanthropists have understood something that liberal philanthropists appear to have missed—the importance of building institutions.
The questions that Calabresi, McIntosh, and Liberman raised as they began to organize identified many of the crucial issues of contemporary 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 if so, 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 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 18th-century meaning?
Calabresi, Liberman, and McIntosh organized the Federalist Society on their campuses in 1981 and 1982, and it swiftly spread to many others. The students were assisted by professors who were themselves struggling with the prevailing liberal ideology of their colleagues. Professors Ralph K. Winter Jr. and Robert Bork helped Calabresi start the Federalist Society at Yale, and Professors Antonin Scalia, Richard Epstein, Richard Posner, and Frank Easterbrook were advisers to Liberman and McIntosh at Chicago. A couple of years earlier, Spencer Abraham and Stephen Eberhard, then students at Harvard Law School, had started the Harvard Journal of Law and Public Policy as a vehicle for conservative ideas. Eventually it 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 sponsored 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 financed the conference. Within one year of the first symposium, there were 17 Federalist Society chapters, all on law-school campuses.
The society grew continuously in subsequent years. By 2000 it had 25,000 members, lawyer chapters in 60 cities, and law-school chapters on 140 campuses. Today there are more than 300 chapters. They include lawyer chapters in every major city in the country as well in London, Paris, Brussels, and Toronto; student chapters in every accredited law school in the United States and in the business schools at Harvard and Northwestern; and law-school-alumni chapters, recently started by the society to enable alumni to better reconnect. To fuel its networks, the society connects with other conservative organizations—think tanks, public-interest law firms, and philanthropic organizations.
Conservative philanthropists, like the Koch brothers, support the Federalist Society with large annual gifts. Most of those are unrestricted funds, allowing the organization to use the money as it sees fit. Donors have not insisted on measurable short-term outcomes, but are supporting the long-term goal of sustaining a legal conservative movement. In that respect, conservative philanthropists have understood something that liberal philanthropists appear to have missed—the importance of building institutions.
The Federalist Society has been so successful that organizations outside the field of law and policy have adopted its model. The Benjamin Rush Society, founded in 2008, was formed in reaction to what was seen as the prevailing liberal bias in medical-school curricula. It seeks to educate medical students on free-market solutions to health care, and to question government intervention in the relationship between physicians and patients. The Alexander Hamilton Society, dedicated to foreign, economic, and national-security policy, was founded in 2010. The group believes that foreign and domestic policy must be shaped to defend the principles of individual liberty, limited government, economic freedom, the rule of law, human dignity, and democracy. The Adam Smith Society was formed recently to achieve in business schools what the Federalist Society achieved in law schools, exposing students to the philosophical and moral underpinnings of capitalism. All three groups are building institutions based on student chapters. And all three groups subscribe to principles of individual liberty, limited government, and free markets.
How Conservatives Captured the Law
Although the predominant values when Calabresi, McIntosh, Liberman, and Abraham arrived in law school were liberal, a wave of conservative political resurgence was reaching its crest as the students began to organize. Sidney Blumenthal, the journalist and onetime aide to President Bill Clinton, describes the election of Ronald Reagan as president in 1980 as a triumph of the new conservative "counterestablishment." The Reagan presidency created a powerful platform—in all three branches of government—for members of that movement. So when the young Federalist Society lawyers burst onto the scene, there was a political apparatus waiting to put them to work.
For example, after law school, Calabresi clerked for Robert Bork and Antonin Scalia, then worked in the White House and the Justice Department. McIntosh became a special assistant to President Reagan and to Attorney General Edwin Meese III. Liberman clerked for Scalia on the Court of Appeals, then served as an assistant attorney general. When Scalia was appointed to the Supreme Court, she clerked for him there. Later she worked in the White House when George H.W. Bush was president.
Since the Reagan administration, membership in the Federalist Society has become a passport to professional advancement. Federalist Society members reached the height of their political influence in the George W. Bush administration. Then-Vice President Cheney, addressing the Federalist Society at its national convention in 2001, noted, "There are many members of the Federalist Society in our administration. We know that because they were quizzed about it under oath. We're especially proud to have two of your founders at the Department of Energy—the general counsel, Lee Liberman Otis, and Secretary Spencer Abraham." In 2001 three cabinet members were either Federalist Society members or active participants: Energy Secretary Abraham, Interior Secretary Gale A. Norton, and Attorney General John D. Ashcroft. Theodore Olson, a Federalist Society stalwart, was solicitor general. Five of the 11 lawyers in the White House Counsel's Office were members.