Movin' on Up with the Federalist Society | The Nation


Movin' on Up with the Federalist Society

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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 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.

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