The Federalist Society, the Fever Swamps, and Conservatism

The Federalist Society is an important institution in American politics. When talking about judicial selection in the Trump White House, former White House Counsel Don McGahn stated that Federalist Society priorities had been “in-sourced” to the White House. In the wake of President Trump’s nomination of Federalist Society-aligned justices Neil Gorsuch and Brett Kavanaugh there has been increased press attention to the influence of the organization on points large and small.

The group has also received increasing scholarly attention over the past decade. Scholars such as Amanda Hollis-Brusky and Steven Teles have documented the institution-building by the conservative legal movement that “FedSoc,” as it’s known in colloquial parlance, exemplifies. And Ann Southworth and Daniel Bennett have explored the various groups that make up the conservative legal movement, most importantly the libertarian-cum-economic conservatives and the social conservatives.

This scholarship and media reporting has treated “FedSoc” seriously. By that I mean focusing on the group as something akin to an “intense policy demander” vis-a-vis legal policy. My goal is not to disturb these findings — they’re undoubtedly correct — but to highlight a different aspect of the group’s political and legal mission. The (short) story of the Federalist Society’s rise and increasing influence is the story of the development of movement conservatism as the New Right coalition gained control of the GOP. It is also the story of a successful institutional site in the alternative knowledge structure conservatives built. And just as political scientists have begun to document the New Right’s relationship with its more fringe elements (Schlozman and Rosenfeld 2018), we should not be surprised to learn the Federalist Society has a checkered relationship with the fever swamps.

Consider Leonard Leo, the executive vice president of the Federalist Society. At the Federalist Society’s annual meeting in mid-November, a group of “conservatarian” legal and political elites, calling itself Checks and Balances, released a “Mission Statement” giving clear, if implied, warning they were concerned about the Trump Administration’s actions and statements regarding “the rule of law, the power of truth, and the independence of the criminal justice system.” (Among the notable signees were George Conway, libertarian law professor Jonathan Adler, the widely-respected law professor Orin Kerr, and Tom Ridge, former governor of Pennsylvania and DHS secretary).

The group was unsurprisingly dismissed by the fever swamp-adjacent website The Federalist as, at bottom, “merely Never Trump politics expressed in the sort of disdain for the president . . . that seems rooted more in class than a defense of conservatism, let alone the Constitution.”

But Checks and Balances was also harshly criticized by Leo:

“I find the underlying premise of the group rather offensive. The idea that somehow they need to have this voice because conservatives are somehow afraid to talk about the rule of law during the Trump administration . . . . The one bone I would throw them, a tiny wish bone off the carcass . . . is that they credit the president with advancing the rule of law through his judicial appointments.”

This was not the first time Leo found himself aligned with the fever swamps. In December 2017, Leo was on hand when Ginni Thomas, a long-time conservative activist (and wife of Justice Clarence Thomas (the latter officiated Rush Limbaugh’s wedding)), presented an “Impact Award” to James O’Keefe’s Project Veritas. O’Keefe of course has made a career out of conservative “investigative” journalism that involves, at best, questionable ethical decisions. In addition to Leo, a veritable Who’s Who of the conspiracist Right was present at the Trump International Hotel in Washington when Thomas honored O’Keefe: Sean Hannity, Dan Bongino, Tom Fitton, and Charlie Kirk (among others).

This does not appear to be an accident. If one cares to look, there are a number of far-right actors and fever swamp-aligned conservatives who are listed as “contributors” to the Federalist Society, some of whom bear no obvious relationship to debates about constitutional law and legal policy:

  • Iowa MC Steve King, who has ties to far-right groups and endorses white nationalist politicians, spoke at a FedSoc conference last year (surrounded by a number of conservative scholars) and has appeared at a number of FedSoc events over the years.

 

  • Charles Murray has long been conservatives’ favorite social scientist for his putatively “hard-truth” views regarding the welfare state and race and IQ (views better understood as the latest iteration of scientific racism on the Right). Murray has extensive ties with the Federalist Society (A number of influential conservative and libertarians activist-intellectuals were acknowledged by Murray when he wrote a middle-brow book on constitutionalism, By the People: Rebuilding Liberty Without Permission).

 

  • John Lott, whose work on gun control has been long been considered intellectually unserious — Lott left academia to start a gun rights group and is a Fox News contributor —  spoke as recently as this year at a Federalist Society event on the Second Amendment, and as recently as 2010 on the unsupported “more guns, less crime” research.

 

  • Dinesh D’Souza, a once well-respected conservative intellectual but who has long played on the edges of scientific racism while trafficking in conspiracy theories, spoke as recently as this year at an event co-hosted by the UCLA Chapter of the Federalist Society.

 

 

  • Relatedly, Kris Kobach, a political entrepreneur on the issues of immigration and voter ID has been given a platform by the group despite his ties to far-right immigration groups. Von Spakovsky was called by Kobach as an expert witness to defend a voting registration law ostensibly directed at the problem of “illegal aliens” voting.

 

  • And conservative media provocateurs Laura Ingraham (a former Thomas clerk), Mark Levin (who routinely traffics in conspiracy theories about the Mueller probe), and Mark Steyn have all participated in Federalist Society events over the years. (At a 2008 speech, Steyn was introduced by one of the founders of the Federalist Society, Steven Calabresi. Calabresi referred to Obama in a 2010 Politico column as “the teleprompter presidency”).

The Federalist Society’s public face is a self-described debating society where important legal ideas are worked out. It is that, but it is not only that. An overlooked aspect of the Federalist Society’s success may also be attributable to its ability to bring together influential voices from the intellectual and conservative media ecosystem. Beyond tying its preferred constitutional philosophy of originalism to the larger conservative movement, the Federalist Society may also act as an institutional site that can provide imprimatur to a range of conservative voices, voices more important to movement conservatism writ large rather than merely high-brow legal debates.[1] Put differently, another aspect of the group’s influence could be that it ties together the traditional, social, and racial conservatives that make up the New Right coalition by providing an elite platform for each groups’ views. And just as the fever swamps are intertwined with movement conservatism (Schlozman & Rosenfeld 2018), it should come as no surprise that these voices routinely appear at Federalist Society events.

This post is necessarily exploratory in nature. But perhaps there are enough “facts on the ground” to begin thinking about the Federalist Society as not merely a legal policy group, but serving additional institutional roles for movement conservatism. And a larger project might include investigating constitutional conservatism’s relationship over time to the Manichean conspiracist thought that has marked movement conservatism since its earliest days. It may be a project worth undertaking.

[1] The Federalist Society asserts it “takes no position on particular legal or public policy issues” and it does “imply endorsement” of any contributor’s views. This position is difficult to take at face value given the scholarship and reporting on the group.

 

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