This past March, when the Federalist Society for Law and Public Policy Studies held its 37th annual national gathering for conservative law students, the lineup of speakers and panelists included an impressive number of Republican Party and conservative movement stars.
All four of the conference’s main panels were chaired by active Republican-appointed federal appeals court judges. Amul Thapar—a protégé of Senator Mitch McConnell who “nearly wouldn’t speak” to his own father upon finding out he had voted for Barack Obama, his father said—directed one panel. Edith Jones, a long-time 5th Circuit judge considered too conservative for the Supreme Court by the George H.W. Bush administration, moderated another. Elizabeth Branch, a recent appointee of President Donald Trump to the 11th Circuit and former senior official in the George W. Bush administration, moderated the third panel, while fellow Trump appointee to the 6th Circuit John B. Nalbandian moderated the fourth. And the “keynote” was a “fireside chat” between former GOP Senator Jon Kyl and Arizona Governor Doug Ducey, a fellow Republican. Despite what appears to be an obvious political valence, the Federalist Society and its high-profile members have long insisted the nonprofit organization does not endorse any political party “or engage in other forms of politicaladvocacy,” as its website says. The society does not deny an ideology—it calls itself a “group of conservatives and libertarians”—but it maintains that it is simply “about ideas,” not legislation, politicians or policy positions.
Federalist Society documents that one of us recently unearthed, however, make this position untenable going forward. The documents, made public here for the first time, show that the society not only has held explicit ideological goals since its infancy in the early 1980s, but sought to apply those ideological goals to legal policy and political issues through the group’s roundtables, symposia and conferences.
The question of whether the Federalist Society is properly characterized as a “society of ideas” or a political organization has significant ramifications. The Code of Conduct for United States Judges, a set of guidelines administered by the federal judiciary’s Judicial Conference, was revised earlier this year to bar sitting federal judges from participating in conferences and seminars sponsored by groups “generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.” (The Code does not “explicitly” apply to Supreme Court justices, though they have looked to it in the past.) One former federal judge argued that under the new ethics opinion, the Federalist Society is now a “no-go zone for federal judges.” The Society’s president, Eugene Meyer, responded, calling the former jurist’s argument an “absurd and ludicrous” interpretation of the rule, adding that the Federalist Society has said “time and again” that it is nonpartisan and does not take official policy positions.
But the newly unearthed documents—a 1984 grant proposal and cover letter, written by Meyer on the Federalist Society’s behalf and now housed in the late Judge Robert Bork’s papers at the Library of Congress—provide evidence that the Federalist Society, in contravention of what the new Codestates, in fact “advocates for specific outcomes on legal or political issues.” This suggests that federal judges, by attending Federalist Society events, are transgressing the Code’s new guidelines. Given the importance of active federal judges to the Federalist Society’s long-term goal of reshaping the law, barring them from the society’s events could hamper its continued ability to exert the political influence it has impressively built over decades.
The Federalist Society was founded in 1982 as a small law student group with the goal of bringing conservative and libertarian speakers, and their ideas, to law school campuses perceived to be dismissive of these intellectual traditions. After the Federalist Society held its first national symposium at Yale Law School that year—featuring recent Reagan-appointed federal appeals court judges Bork and Antonin Scalia—Federalist Society student groups started popping up on law school campuses around the country. The organization now boasts more than 65,000 members, and most federal judgeships, clerkships and executive branch legal jobs in Republican administrations are effectively off-limits to nonmembers.
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Amanda Hollis-Brusky is an associate professor of politics at Pomona College and author of Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution.
Calvin TerBeek is a Ph.D. candidate in political science at the University of Chicago.
