Federalist Society

The summer recess is here so Strict Scrutiny Podcast will now have special episodes covering a range of topics. 

This week included a guest that talked about her now old if quite relevant (2015 or so) book on the Federalist Society. Amanda Hollis-Brusky.   I'm not sure if I tried to read it before. It is basically a thesis project translated into book form.  It is a bit hard going as a run-of-the-mill book.

The book talks about the influence of the Federalist Society on the law.  It doesn't directly as an institution lobby as such. It just is that its members lean a certain way and have a lot of influence. The Federalist Society ultimately "institutionalized in formal networks" a segment of people.  

Leonard Leo, a top official is in the news of late.  But, we also now have clerks, justices, voices in academia, and advocates (and amicus) in front of judges all a product of this early 1980s creation.  There is a laughable blurb on the back cover from John Yoo (yeah that guy) saying the organization "takes no positions" and is a "debating society" but somehow still has a "profound influence on constitutional law."  By osmosis?  

The book's title comes from an old line that "ideas have consequences."   Sure enough.  It is "stop bullshitting me" to ignore that the group is filled with people with ideological leanings of a conservative and libertarian persuasion.  They have personal and professional ties with each other that would not exist if they were liberals.  They offer each other "intellectual capital," most clearly shown in Justice Thomas's opinion citations.

The author basically uses the book to discuss the nature of the group and its influence.  The book is not meant to be a critique as such.  Fine enough.  I can do so.  One thing that is annoying is how they and their advocates self-righteously use platitudes like the importance of judges to interpret the law and not "make law."  Special snowflakes.  Liberals interpret the law. You just disagree with their approach.  Courts make law by "clarifying" it, including the Supreme Court choosing from a variety of options.  

They also say they are concerned about "individual liberty" and the separation of powers.  Again, who isn't?  I am not going to play "gotcha" games here like when conservatives pretend to be libertarians.  We can be serious here.  The "major questions doctrine" very well can be shown to dishonor the separation of powers by taking power away from Congress and the administrative agencies they rightly have.  

Originalism is supposed to be a means to have judicial restraint. It's a fool's errand.  This is not new either. People are able to lie to themselves without being conservatives.  But, the point holds.  Three basic problems.  There is too much water under the bridge to apply the "original" law.  Stare decisis is a thing even now.  Modern times are too different, so new approaches are going to be applied. And, originalists themselves don't want (or are able) to act like they are LARP-ing as 18th or even early 20th Century people.

(The bonus is there are disputes over the original meaning and broadly speaking it includes the "living" constitutionalism that they sneer at.)  

The overall concept of the Federalist Society is not illegitimate. There is a general legal ideology and various interrelated groups are working together to promote it.  I did not read the book (skimmed it a bit; again it's too academic for me to get into it) but I would add there are things these days that weren't in place in the past. For instance, some sort of network was in place in the 19th Century.  But, there were no law clerks.  And, law schools were much less important than they are now.  

Two basic things bother me.  First, again, too much bullshit.  This includes some liberals (I have one in mind) upset at them but who still politely debate them as the society was used by Trump and so forth.  This is more "we are just a debating society" business as if there are only a few bad apples and it isn't some united whole (if somewhat loosely organized).  

The second is that they are using their ideas and power in bad ways. This is both the merits of their positions and things like the Alito and Thomas stuff.  The author seems to at least somewhat grant (at least for the sake of argument) there is a line between individual members and the group as a whole.  At some point, that is just hard to take seriously.  

Finally, is there a liberal Federalist Society?  The wannabee is the American Constitutional Society, perhaps.  I don't think it has the power of the Federalist Society.  Also, there is a general liberal-leaning legal community out there.  President Biden is choosing many people who are not only checking off the diversity checklists but that they appreciate on the merits.  There surely are some institutional connections there and liberal judges quote academic stuff too.  But, there is not one group like them

Liberals also are not as hard and fast with interpretation as conservatives with their appeal to "originalism," which is surely a loose term.  So, Justice Ketanji Jackson did not want to be tied to a particular interpretative vision though she clearly is showing some support for a mixture of text and general intent.  

Some liberals don't like the "living constitutionalism" term though it is valid.  One person said "constitutionalism" itself implies that anyway.  Granted.  It is a bit cute though since it doesn't explain itself.  Not that "originalism" really does much better since what exactly was "originally" understood?  Maybe, the understanding was things should be open-ended.

I think experience has shown that we have a form of common law constitutionalism.  This bothers some people since it seems to give judges too much power and perhaps is a contradiction in terms.  The Constitution is a written document!  Yes.  But, it is a framework.  It has a lot of "give" to it.  And, judicial interpretation over the years develops, influenced by the norms and understandings of the day.  The "common" law.  

Liberals sometimes are misguided but their view of the law to me tends to be more honest, all things being equal.  They know choices are made and the key is what is behind those choices.  If this scares you, welcome to life pal.  The alternative is to lie to yourself and that's not great.