I’m not surprised that the two senators most eagerly vying to undermine American democracy to score political points with Donald Trump’s base—Ted Cruz (Texas) and Josh Hawley (Missouri)—are lawyers by training. That’s because I know how they were trained. Cruz went to Harvard Law School (as I did) and was a member of the Federalist Society (as I was not). Hawley went to Yale Law School and was the president of that school’s Federalist Society. They, along with Senators Tom Cotton and Mike Lee, of Arkansas and Utah respectively, form the Senate’s “Federalist Society Caucus.” I’ve met horsemen of the apocalypse who are less destructive.
The Federalist Society is a well-funded group of lawyers that pushes a legal ideology at odds with a pluralistic, tolerant, liberal society. The organization proselytizes a theory of constitutional interpretation, known as originalism, which holds that the authors of the Constitution agreed with Republican-aligned interest groups (gun manufacturers, big business, evangelical Christians, bigots, etc.) in nearly all cases. Its members are essentially fringe counterculture warriors who, having been showered with the Koch brothers’ fairy dust, are magically transformed into mainstream power brokers. They organize in law schools, promising prestige and power to the relatively few law students who are willing to argue against civil rights and social equality, and they reward those students with fantastic job opportunities throughout the Republican legal establishment. Nearly every conservative lawyer of national note is an active Federalist Society member or on good terms with the organization.
In recent years, their influence has become such that almost every Republican candidate for president or a Senate seat promises to appoint or confirm Federalist Society judges. They use this promise as a dog whistle to signal to voters that they oppose women’s rights, minority rights, and LGBTQ rights, without having to commit to overturning the gains of the civil rights era through unpopular legislation. That’s in part because winning statewide or national office based solely on standard-issue conservative extremism (albeit dressed up as constitutional concern-trolling) seemed implausible.
Until Donald Trump.
Trump has shown, over two elections, that there are still enough white people in this country to win a national election on a platform of white pride and “owning the libs.” Trump won in 2016 by offering up a mix of white male patriarchy and economic populism, delivered none of the populism, and then received even more votes the second time despite presiding over a pandemic that has killed 350,000 Americans. He was only defeated (and he was defeated) by a groundswell of opposition, not to his policies (which are fairly standard Republican policies, and don’t let any of these Lincoln Project people tell you any different), but to his personality, criminality, and incompetence.
But Trump provided a template for how to lean into white cultural grievance and use it to fuel a full attack on diversity, tolerance, and pluralism within a liberal democracy. The Federalist Society’s Senate Horsemen have noticed.
As it stands now, it feels as likely as not that Trump will run again in 2024. If he doesn’t, one can only hope that his base splinters, as most cults do after their leader is Raptured back to reality. But just in case Trump doesn’t run, the members of the Federalist Society Caucus are positioning themselves to recapture the Trump magic, this time with a stronger ideological bent.
Of these four senators, Hawley is the one who keeps me up at night. Lee doesn’t appear to want to be president, while Cruz wants it so bad he’s bearded in desperation. Cotton has the white supremacy part down pat, but, as his racist op-ed in The New York Times showed, he can generate headlines only when he receives permission from an editorial board. Oh, the networks will have Cotton on TV because he’ll say the crazy, but he does it in a laconic speaking style pulsing with such evident contempt that it gives people the willies. Cotton is basically Stephen Miller with a drawl.
Hawley, at just 39 years old, is the youngest member of the Senate, and it shows in his ability to generate free media headlines. He’s energetic and sharp. He’s become the Republican face of his party’s crusade against “Big Tech,” but for him it’s not just Twitter grievances and Parler tricks. He’s taken on everything from Section 230 (the rule that protects social media companies from legal liability over user-generated content), to Mark Zuckerberg (he made an app when he didn’t have any friends), to “loot boxes” (a device in video games that basically encourages young kids and grown-ass men like me to gamble with real-life money). All of these fights generate headlines, and since his adversaries are so generally odious, most of those headlines are positive. I’m old enough to remember when Tipper Gore was treated like an uncool schoolmarm for taking on the video game industry, but Hawley is treated like he’s fighting for the little guy, even though both are willing to use the powers of the state to police and coerce private choice.
Just like Trump, Hawley has a talent for fake populism. His 2018 Senate campaign against Claire McCaskill made him out to be some kind of hardscrabble farm boy. In reality, he would probably use a silver spoon to pot a plant. He’s the son of a banker, who attended an elite Kansas City prep school, followed by college at Stanford and law school at Yale. From there he received a prestigious teaching fellowship at the St Paul’s School in England, a secondary school that has educated the London merchant class elite. And then he went to the Supreme Court, where he clerked for Chief Justice John Roberts.
The elite training has given Hawley the reputation of a constitutional scholar, but, as is often the case with these FedSoc types, his legal acumen is just a front for religious and cultural fanaticism. Hawley worked for the Becket Fund for Religious Liberty, a law firm that specializes in bringing cases that justify discrimination in the name of religion. There, Hawley consulted on and wrote briefs for Burwell v. Hobby Lobby, the case that allowed closely held corporations to discriminate against women seeking birth control. A 2019 profile on Hawley in The New Republic illustrated that even his crusade against Big Tech is driven by his religious beliefs. The author, Alexander Zaitchik, quoted from his first speech on the Senate floor.
Hawley, he wrote, invoked an “epidemic of loneliness and despair… a society increasingly defined not by the genuine and personal love of family and church, but by the cold and judgmental world of social media.”
I’ll blame Facebook for a lot of things, but killing God is not one of them. Hawley’s castigation of social media as a moral black hole in our society is revealing for what it leaves out: the role of Big Tech in spreading misinformation and disinformation. Republicans like Hawley want to stop social media from spreading secular culture, but they won’t stop it from spreading lies.
Substituting religious concerns for secular laws is part and parcel of Federalist Society training. It was, after all, Hawley who used his perch on the Senate Judiciary Committee to declare that he would not confirm any Supreme Court nominee unless that nominee opposed Roe v. Wade, a stance so antithetical to the concept of impartial justice that even the duplicitous and cowardly Lindsey Graham wouldn’t admit to it.
It doesn’t take a constitutional scholar to impose Christian dogma through law. It just takes an ideologue who is willing to abandon secular principles under the guise of constitutional fealty. The Federalist Society has been teaching people how to do this for decades. Hawley is one of their most electable protégés because he’s figured out how to combine the now-standard conservative appropriation of the Constitution with the faux-populism of Republicans who are too racist for Twitter.
Now, Hawley has volunteered to play a leading role in Trump’s ongoing clown coup. There is no more fitting indictment of Federalist Society ideology than the fact that one of their leading lights is throwing away the very foundation of democratic self-government—an election—in order to advance his legal agenda. I couldn’t have written a more apt culmination to that organization’s 40-year crusade if I had Quantum Leaped into Aaron Sorkin.
Like I said, Hawley knows how to grab a headline. People better get wise to his game, and soon.