Movin' on Up with the Federalist Society

September 13, 2001 | This article appeared in the October 1, 2001 edition of The Nation.

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How does a 1L at Harvard Law School end up singing arm-in-arm with one of the most influential judges on the federal appellate bench? If you are a student at almost any law school, not just one of the top ones, and you have remotely conservative interests, you too can join a student chapter of the Federalist Society and gain automatic admission to the highest echelons of right-wing politics and legal advocacy. Take Chris Ward, 31, a former Latin teacher who graduated from Harvard Law School this spring. As a first year student, he attended the society's annual national student symposium, held that year in Chicago. Afterward he repaired to a hotel bar where he and his friends joined in singing "For He's a Jolly Good Fellow" to Eugene Volokh, a UCLA law professor. Mingling with the group was Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit, a notorious card who is considered a leading candidate to become a Supreme Court Justice. Ward drew in Judge Kozinski for a few rounds. "I had just met him for the first time," Ward said. "I just thought it would be fun."

About the Author

Amy Bach

Amy Bach is the author of Ordinary Injustice: How America Holds Court.

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The Liberal Riposte (Law)

Imitation is the highest form of flattery. But liberal groups who want to counter the Federalist Society have no wish to flatter; they hope to engage liberal law students in a broad battle against the conservative legal movement.

On July 30 a cast of heavy hitters kicked off the American Constitution Society (www.americanconstitutionsociety.org), which grew out of an effort at Georgetown Law School to establish a networking and intellectual base for centrists and progressives. Speaking to loud cheers and standing ovations at Georgetown were former US Attorney General Janet Reno, NAACP Legal Defense and Educational Fund president Elaine Jones, former judge Abner Mikva, Harvard Law Professor Laurence Tribe and former Solicitor General Walter Dellinger. Judge Stephen Reinhardt, Judge Alex Kozinski's ideological adversary on the Court of Appeals for the Ninth Circuit, flew in from Los Angeles. Since an article appeared about the group in the New York Times in May, the number of law schools with students and professors hoping to open chapters has gone from twelve to eighty. The chapters will begin by sponsoring forums and debates, and lawyers' chapters are set to follow in metropolitan areas.

"One can always puzzle over the timing--where have we been for the past ten years?" said Chris Edley, a law professor at Harvard who is on the board of advisers. Former New York State Governor Mario Cuomo has also agreed to be on the board. Cuomo says he sees the group as a counterforce to make sure the Constitution is interpreted in a "reasonable" way. "Once you put that much weight on that side of the boat, you better put weight on the other side of the boat," he says. "We're the weight on the other side of the boat. We need to right the boat and keep it even."

Also during the summer, fifty-eight professors and lawyers met in Berkeley to form the tentatively named Equal Justice Society (www.equaljusticesociety.org), which will sponsor discussions on how to protect civil rights. Eva Paterson, the group's founder, who directs the Lawyers Committee for Civil Rights in San Francisco, said she realized the necessity of a coherent response to the right after giving a speech at a convention of black federal judges. "Judges came flying forward," she said. "They said, 'Could you just bring us some theories? We sit there in our chambers and don't have any theories.'" The problem, she admits, is that liberalism is more fractured politically and more complicated judicially; being opposed to government intervention is easier than the messy business of creating government action. The first national conference will be held October 12-13 at Harvard Law School. The host will be Professor Charles Ogletree.

A third organization, the New York-based Institute for Democracy Studies (www.idsonline.org), also plans to establish student chapters this fall "to do detailed research on the conservative legal movement" at New York University, CUNY and Columbia. The chapter at Columbia will be headed by Professor Jack Greenberg, former director-counsel of the NAACP Legal Defense and Educational Fund, who helped litigate Brown v. Board of Education.

Amy Bach

The chance to meet powerful legal luminaries like Kozinski is one of the special treats that come with membership in the Federalist Society. Headquartered in Washington, DC, the society was a focus of attention this spring because President George W. Bush used it to recommend nominees for the federal bench, a role traditionally assigned to the more moderate American Bar Association. But its real strength is its chapters in 150 law schools, which allow Federalists to gain access to the conservative elite, putting them in a superior position for competitive jobs with judges, law firms and now the Bush Administration.

Unlike twenty years ago, when liberal federal judges provided the most desirable clerkships for law school graduates, today the best "feeders" to the Supreme Court and White House are Reagan and Bush appointees. Judge Kozinski, who screens potential clerks for Supreme Court Justice Anthony Kennedy, says that seeing the Federalist Society on a résumé "tells me you're of a particular philosophy, and I tend to give an edge to people I agree with philosophically." The notion hasn't been lost on law students, some of whom keep two résumés, one with the Federalist Society tacked on. "I have seen some students go to the Federalist Society as a career builder," says Cass Sunstein, a professor at the University of Chicago Law School.

Federalists say the favoritism is long overdue; they grumble about what they describe as oppressive disdain from liberal law professors who make them the butt of jokes and left-leaning students who hiss at them in class. To redress this perceived discrimination, the Federalists have created a system that smacks of affirmative action for conservatives. It's an ironic twist for a group that generally opposes affirmative action, on the grounds that opportunity should be based on merit alone.

But the benefits of Federalist membership go beyond the usual advantages of affirmative action, like job promotion. They include the opportunity to change law, public policy and the judiciary. From law school chapters, students can graduate into one of the society's fifteen "practice groups," which provide a venue to design arguments that will be well received by the conservative wing of the Supreme Court. Practice-group leaders, who often have clerked for the Court or have argued before it, hold meetings and debates to formulate how to push case law toward Federalist principles.

Federalism, in its most basic form, is the idea that the federal government shouldn't encroach on the powers that the Constitution allegedly has reserved to the states. But the Federalist Society is an umbrella organization embracing all right-wing causes. Some members favor libertarian principles of individual rights over "big government"; others advocate strict-constructionist interpretations of the Constitution, which they claim represent the framers' intent. Whatever legal justification is offered to ground these views, the Federalist ideology is in effect a tool to eviscerate Congressional efforts to advance public policy goals where the states have failed. As critics point out, it benefits big business, it's anti-egalitarian, it shuts plaintiffs like the poor and disabled out of the courts, and it rolls back the New Deal notion that the courts have a role to play in helping the downtrodden. While the legal theories may appear tidy, they lack compassion, working to support favorite sons like gun manufacturers and HMOs.

Federalist arguments include: Sexual-harassment and gender-equality laws impose illegitimate burdens on business; the powers of the Environmental Protection Agency should be exercised by the free market or, at most, by local or state government; juries are too unpredictable to be given the power to award punitive damages against large corporations but legitimate enough to be empowered to impose the death penalty; welfare laws by and large should be repealed; hate crimes are not a separate and more reprehensible category of criminal behavior than crimes not motivated by animus toward people of different races or sexual orientation; and the right of the people to keep and bear arms means empowering individuals to take up arms, not just preserving organized state-based militias.