A Small Right-Wing Conspiracy: The Federalist Society

It seems like ancient history, but it was only 15 years ago that Hillary Clinton appeared on the Today show and accused Republicans of a “vast right-wing conspiracy” to take down President Bill Clinton. Clinton was speaking in the last millennium, and she was speaking about all conservative interest groups, but her statement is very relevant when it comes to conservative efforts to change the direction of American law.

There is a right-wing conspiracy in American law led by the influential Federalist Society and described by Michael Avery and Danielle McLaughlin in their new book The Federalist Society: How Conservatives Took the Law Back from Liberals. But it is the fact that the right-wing conspiracy is not vast that has made the Federalist Society effective.

It was in 1982 that the Federalist Society was founded by a group of students at Yale Law School, Harvard Law School, and the University of Chicago Law School as an attempt to challenge what they considered to be the neglect of conservative and libertarian ideas in the American legal system. The students who founded the organization were an impressive group, and they were aided by leading luminaries like Robert Bork (who would be nominated to the Supreme Court by President Ronald Reagan and rejected by the Senate) and then-professor Antonin Scalia, now a Supreme Court justice.

From a small student organization, in 30 years the Federalist Society has expanded to include many of the leading conservative lawyers in the country. The society has come to be known for featuring participants who believe that the Constitution should be interpreted using “originalism,” a doctrine stating that the basic meaning of the Constitution was set at the time the document was created at the end of the 18th century.

Avery and McLaughlin argue that the Federalist Society is primarily a “group of intellectuals.” The first sentence of The Federalist Society states that this is a book “about the power of ideas.”

The majority of the rest of the book is devoted to the programmatic agenda of the members of the Federalist Society. There are chapters on issues such as the regulation of private property, access to courts, identity-based discrimination, privacy in sexual decision making, and the relationship between international law and American law. As Avery and McLaughlin argue, the Federalist Society deals with “many of the crucial issues of twentieth-century America.”

The Federalist Society was dominated by individuals with a carefully articulated and influential vision of American constitutional law, and no doubt still is. This influence, however, has been as much organizational as intellectual.

One reason to question Avery’s and McLaughlin’s description that the Federalist Society is important as a “group of intellectuals” is that ideas articulated by the organization were not first crafted by the Federalist Society. Take one notable example: how judges should interpret the Constitution. The idea of “originalism” goes back at least as far as Chief Justice John Marshall’s opinions in the early 19th century. Justice Hugo Black was known in the 20th century as a leading originalist. In the decades before the Federalist Society was created, the legal historian Raoul Berger and also Bork were known for writing important scholarly defenses of originalist approaches to the Constitution.

Originalism might have been well known, but the best ideas are worthless unless messengers can find the right way to communicate them. The genius of the Federalist Society is that its structure as a tight-knit group of legal elites has permitted it to take ideas like originalism and make them more compelling by finding the right messengers to project them into broader debates. It is the small right-wing conspiracy behind the Federalist Society that makes it as worthy of study as much as the ideas it communicates.

Avery and McLaughlin pay some attention to this. They note that the Federalist Society functions as a smaller “network” that serves as a “passport to career opportunities.” The collection of progressive organizations working on similar issues—ranging from the American Civil Liberties Union to the American Constitution Society for Law and Policy to the NAACP—feature a much larger and more diffuse set of participants.

It is easier for senior Federalist Society members to identify the brightest and most able young conservatives at meetings or through Federalist Society connections. Avery and McLaughlin report (with a bit of exaggeration) that “every single federal judge appointed by President George H.W. Bush or George W. Bush was either a member or approved by members” of the Federalist Society. When President George W. Bush considered nominating Harriet Miers to the Supreme Court, her absence of ties to the Federalist Society made many conservatives suspicious of her right-wing bona fides. As one leading lawyer from the Reagan administration said, conservative legal elites know each other “by first name and handshake.”

Finding the best messengers for the conservative legal cause makes a big difference. If the conservative legal movement had never identified figures like Scalia or John Roberts, ideas like originalism simply would not have sold as well. Originalism makes for a more compelling message in the judicial writings of a Scalia or a Roberts than in the writings of your average conservative lawyer.

Conspiracy is a bad word in politics, but we might think of it not as a pejorative description, but as a profound organizational compliment. Only successful organizations are relevant enough to be conspiracies, and the Federalist Society has taught us that one of the best ways to be successful is to be small. Since its creation, progressive associations have been watching and have started to model themselves on its organization. Anyone who reads Avery and McLaughlin’s book will be able to see why.