Jurisprudence

Boycott the Federalist Society

The group refuses to condemn insurrectionists in its ranks. It should not occupy a place of respect in the legal community.

John Eastman points while testifying.
Federalist Society leader John Eastman testifies before Congress. Alex Wong/Getty Images

Two months ago, on the eve of my graduation from Stanford Law School, I learned that the Stanford chapter of the Federalist Society had filed a complaint against me over a satirical flyer I sent to a law school listserv in January. The flyer advertised an event at which Senator Joshua Hawley and Texas Attorney General Ken Paxton, both long-time Federalist Society members, would make “The Originalist Case for Inciting Insurrection.”

The flyer was a joke, but the officers of the Stanford Federalist Society weren’t laughing. Instead, in a letter of complaint filed with Stanford’s Office of Community Standards, these third-year law students alleged that I had defamed Hawley, Paxton, and the Federalist Society itself. The immediate implications of this allegation were serious: Stanford put a hold on my diploma pending the outcome of their investigation, jeopardizing my graduation and admission to the bar.

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In one sense, the Federalist Society students who filed the complaint against me had a point. Defamation is a false statement of fact that causes harm to the reputation of the person or organization targeted. And I cannot deny that I hoped “The Originalist Case for Inciting Insurrection” would do just that. Where the complaint’s authors went off course, however, was in contending that “The Originalist Case for Inciting Insurrection” presented a statement of fact—that the advertised event was actually going to occur. In reality, I trusted that the audience for my flyer, a group of law students, would deploy their well-honed critical reading skills and spot the clues that this event was not for real. (The flyer explained, for example, that violent insurrection is also known as “doing a coup,” and advertised an event that would have occurred weeks earlier, on Jan. 6.)

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In other words, rather than impairing the Federalist Society’s reputation by spreading a lie, a necessary element of defamation, I hoped to do so by drawing attention to the organization’s all-too-real connections to the Jan. 6 insurrection. In the six months since the attack, the Federalist Society leaders who sought to overturn the results of a free and fair election have faced virtually no consequences, and the organization itself has refused to condemn the insurrectionists in its ranks. An organization that tolerates efforts to undermine democracy should not be permitted to remain in good standing in the legal community.  At minimum, attorneys, law scholars, and law students should refuse to participate in the organization’s events until it takes meaningful steps to disavow the anti-democratic movement so many of its members have supported.

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My flyer itself emphasized the events immediately preceding the Jan. 6 attack: Hawley famously raised his fist in support of the mob that stormed the Capitol, while Paxton (along with John Eastman, who was at the time the head of a Federalist Society practice group) spoke with President Donald Trump at the now-infamous “Save America Rally.” But the Federalist Society’s connections to the insurrection stretch well beyond the day of the attack. Consider the October 2020 speaking tour of Hans von Spakovsky. Von Spakovsky was a member of the Trump administration’s “voter fraud” panel, from which he controversially suggested excluding Democrats and “mainstream” Republicans. For more than two decades, von Spakovsky has been at the forefront of the right wing’s “voter-suppression effort in disguise,” pushing unfounded claims of voter fraud as a justification for restrictions on the franchise. And in the month before the 2020 election he participated in at least nine Federalist Society events, delivering talks with names like “Consequences of Mail-In Ballots” and “Election Fraud 2020: Fact or Fiction?” At one of his talks, von Spakovsky warned: “If it’s a close election, we may have a lot of chaos in a lot of different places, and a lot of litigation contesting the outcome.”

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Von Spakovsky’s warning—or perhaps threat is the better word—proved prescient: in the months following the election, litigation filed by Federalist Society attorneys helped to foster the growing chaos that culminated on Jan. 6.

Most notorious among the lawsuits that sought to overturn the 2020 election was Paxton’s challenge to the voting procedures of four other states, an unprecedented legal maneuver that was summarily rejected by the Supreme Court. Of the 17 attorneys general who joined Paxton in that widely ridiculed effort, 13 are affiliated with the Federalist Society.

Other lawsuits challenging the election filed by Federalist Society officers include Stoddard v. City Election Commission, filed by Edward Greim, a member of the Executive Committee of the Federalist Society’s “Free Speech & Election Law Practice Group”; and Kelly v. Pennsylvania, filed by Gregory H. Teufel, who heads the organization’s Pittsburgh chapter.

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Like Paxton’s Texas v. Pennsylvania lawsuit, these cases sought radically disruptive judicial orders that would have thrown the outcome of the presidential election into doubt. The argument advanced in Stoddard mimicked the unfounded grievance voiced by a mob outside of Detroit’s TCF Center on election day, and called for a pause in finalizing the vote in Wayne County, the most Democratic county in Michigan. Teufel’s Kelly complaint went even further, calling for an order “nullifying a governor’s certification of presidential election results,” as the State of Pennsylvania put it in its brief before the Supreme Court. As with Paxton’s lawsuit, Greim’s and Teufel’s cases were quickly dismissed.

This farcical streak of court losses for Federalist Society officers did not deter other Federalist Society members from continuing to spread election misinformation. In late December, Hawley promised to object to the election results during the Electoral College certification process on Jan. 6. Ted Cruz, another member of the senate’s unofficial Federalist Society Caucus, followed suit.

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All of which is to say that while “The Originalist Case for Inciting Insurrection” was indeed supposed to be funny, the Federalist Society’s connections to the attack on the Capitol are no joke. The collective efforts of the Federalist Society’s membership provided a veneer of legal legitimacy to the falsehoods that fueled the insurrectionist mob. Meanwhile, the Federalist Society itself has resolutely refused to disavow those members who played a role in inciting the insurrection.

No organization with such extensive ties to a violent attack on our democracy should occupy a place of respect within the legal community. The Federalist Society has long relied on the participation of venerated attorneys and influential scholars in campus events to shore up its reputation as a law school debate club. But those who engage in Federalist Society debates lend the organization an air of non-partisan credibility that is completely at odds with reality.

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The Federalist Society cannot be allowed to successfully employ this cynical strategy while its most prominent members continue to fan the flames of a dangerous anti-democratic movement. Law professors, law students, and practicing attorneys should refuse to participate in Federalist Society events until the organization renounces the insurrection inciters in its ranks. Although discourse between those of differing persuasions is critical to the health of a functioning democracy, some issues, like the merits of violent insurrection, should not be up for debate.

When the details of the complaint against me came to light in early June, there was a swift public backlash against both Stanford and the Federalist Society. While the Federalist Society remained silent, Stanford quickly concluded that “The Originalist Case for Inciting Insurrection” was constitutionally protected speech and that the investigation could not go forward. Ten days later, I stood alongside my classmates as we graduated from law school beneath the California sun.

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