Jurisprudence

The Federalist Society Gets a Few Things Right. Liberals Should Take Note.

Sen. Sheldon Whitehouse (D-RI), discusses the Federalist Society and Judicial Crisis Network, during Amy Coney Barrett's Senate Judiciary committee confirmation hearing in Oct 2020.
Sen. Sheldon Whitehouse (D-RI), discusses the Federalist Society and Judicial Crisis Network, during Amy Coney Barrett’s Senate Judiciary committee confirmation hearing in Oct 2020. Drew Angerer/Getty Images

The end of Roe v. Wade was not a spontaneous coup. The decision instead represents the culmination of decades of organized struggle on the right, both within the law and outside of it. And while many groups contributed to the right’s victory, one organization in particular has been thrust into the national spotlight due to the pivotal nature of its role: The Federalist Society.

In left-leaning political and legal circles, FedSoc is generally understood with a mix of disgust and envy. For the most part, however, disgust overwhelms envy: Liberals and leftists denounce FedSoc as a shadowy cabal wielding illegitimate and malign influence over our political system without considering what it has done well, why it succeeded while liberals were stuck on the back foot, and whether any part of FedSoc’s model should be replicated from the left.

Advertisement
Advertisement
Advertisement
Advertisement

The key to understanding FedSoc’s successes is to recognize that the conservative legal movement is barely a legal movement at all. Rather, it’s a political organizing project hiding behind a thin legal veneer. The organization formed as a response to the independence of Republican-appointed justices who voted to end de jure racial segregation, strengthen constitutional protections for criminal defendants, and define the federal right to an abortion in Roe. From the start, FedSoc was designed to build a reactionary world. Its purpose was not to promote a particular theory of law, but instead to fight for political priorities like limited taxes on the wealthy, corporate impunity, resistance to any form of racial justice, the cultural values of the Christian right, and libertarian interest in select civil liberties (like white people carrying guns and corporate free speech during elections).

Advertisement
Advertisement

FedSoc made its politics a reality through careful organizing. It focused on recruiting new law students and building strong social relationships among its membership, using tactics ranging from paying for the best food at lunch talks, to teaching its members how to run campus chapters, to having its most prominent members host cookouts to mix “students and interns with prominent judges, clerks, attorneys and public officials.” As a result, FedSoc didn’t just recruit hard-right ideologues, it created them. Similarly, it coordinated its members through conferences, panels, and nepotistic hiring to allow them to push with organized fervor the legal theories that serve as a smokescreen for the movement’s true purpose.

Advertisement

Elite liberal lawyers, on the other hand, are not capable of this type of explicit and intentional political organizing within the law. That’s not to say individual liberal lawyers don’t have their own politics—individual liberals tend to support LGBTQ rights, abortion, gun control, and more—but for liberal lawyers, such preferences are relegated to the narrow realm of legislative politics; something to write your congressperson about, not a litmus test for supporting a Supreme Court justice or even a reason to boycott a FedSoc event.

Advertisement
Advertisement
Advertisement

Two values fundamental to the liberal legal worldview subvert these lawyers’ ability to engage in effective political organization: Blind reverence for personal brilliance and a latent belief in individualism.

To liberal lawyers, these values are as omnipresent and taken for granted as the air we breathe. On law school campuses, students who score well on exams are lauded as “brilliant” (not studious, or better yet, willing to tell professors what they want to hear). Upon leaving the academy the highest praise with which professors recommend students for employment are celebrations of intellect, resulting in an eyebrow-raising number of applicants described as “smart as a whip,” among other synonyms for “very intelligent.”

Advertisement
Advertisement

Recently we saw the consequences of a politics of intelligence and individualism put in stark relief, as the profession’s most public faces repeatedly embarrassed themselves at the moment FedSoc’s project culminated in a supermajority of reactionaries on the Supreme Court. From professors Noah Feldman, Akhil Amar, and Amy Chua, to practitioners Lisa Blatt and Neal Katyal, prominent liberals cheered the appointments of each FedSoc Supreme Court nominee—while for the most part claiming to disagree very seriously with FedSoc’s politics.  Professor Feldman told us: “I disagree with [Barrett] on almost everything. But I still think she’s brilliant.” Katyal applauded Gorsuch’s “independence.” Blatt put it most succinctly, saying of Kavanaugh: “Sometimes a superstar is just a superstar.”

Advertisement
Advertisement

An ideology whose north star is the independent exercise of personal brilliance will never be capable of fighting the reactionary right. The fetishization of intellect displaces moral and political values, leading liberals to act as if both left and right are always legitimate–as long as each position is argued with pizazz and wit. To them, it does not matter whether left is universal healthcare, civil rights, or police abolition and whether right is transphobia, melting the planet, or child slavery.

Advertisement
Advertisement

Similarly, hyper-individuality hamstrings liberals because it is a way of seeing the world fundamentally at odds with political organizing. If you believe that the independence of judges to use their personal brilliance should be elevated over almost all else, you will naturally bristle at organizations demanding accountability from judges—as liberals bristled at calls for Ruth Bader Ginsburg and Stephen Breyer to retire during the Obama years. As a result, rather than acknowledge something conservatives have done well—organize within the law—liberals attack the concept as illegitimate.

Advertisement

To fight against conservative retrenchment, the prevailing approach to law and politics needs to change and a leftwing political movement needs to make inroads in liberal legal institutions. Who better to learn from than the conservatives who have successfully done the same over the past generation?

FedSoc’s success was built on two pillars, both of which can and should be replicated by leftists trying to reorient the law. For one, conservatives centralized their organizing efforts within FedSoc. For another, conservatives fought to make their fringe ideas predominate within existing liberal institutions through aggressive recruitment and a willingness to fight from within rather than solely from the outside.

Leftists can appropriate this dual strategy by centralizing organizing efforts through a single group (or at least fewer groups!), let’s call it “LeftSoc,” and then by using that group to mold liberal institutions from within, both politically and tactically.

Advertisement
Advertisement
Advertisement

First, a LeftSoc must build around a political vision. Over the past generation, the conservative legal movement’s primary advantage over liberals has been that it offers a substantive vision for society. Yes, it is a vision rooted in reaction and repression, but it is a vision nonetheless. Liberal lawyers, on the other hand, believe that if you’re smart, then you’re qualified–politics be damned. It should go without saying that an effective counterpunch needs a vision too. And a substantive vision from the left should be rooted in the territory where it is strongest—that is, in democratic control of the state and economy and therefore in building power for poor and working people.

Advertisement
Advertisement

Second, a LeftSoc must focus on the nuts and bolts of relational organizing. Beyond its political vision, FedSoc’s most compelling attribute is not its jejune theory of constitutional interpretation, but rather its understanding that legal and policy interventions are downstream from good organizing. That’s why FedSoc invested in recruiting new law students and building strong social relationships among its membership. The left must do the same. Leftwing ideas for reform, from court packing to Medicare for All, are important endpoints, but learning how to achieve them is another matter entirely. The “how” is through organizing—building healthy and supportive networks that both recruit effectively and demand some level of accountability from members.

Advertisement
Advertisement

Third, the left should consider the career trajectories of FedSoc neophytes. As former Justice Felix Frankfurter observed almost a hundred years ago, “the law is what the lawyers are.” But not all lawyers—only those in certain positions of influence, particularly within the state apparatus. Anecdotally, a major difference between law students with liberal politics and law students with politics further to the left is that the former pursue government “insider” roles while the latter pursue nonprofit “outsider” roles. For a left legal movement to exercise power, some of its members will need to overcome a natural aversion to these insider jobs. A LeftSoc could play a critical role in supporting its members so that leftists can change the jobs they enter and not, as is too often the case, allow the jobs to change them.

Advertisement

FedSoc has made a beeline for the federal judiciary, recognizing it as the institution best equipped to implement an agenda of reaction—of enjoining people, groups, and governments from taking action. Because the left’s goals are not to roll society back to 1789 (and because the inherently right-leaning Senate controls judicial appointments), but rather to build something new, equitable, and democratic, leftist energy should instead emphasize key agencies within the administrative state that can resist the judiciary.

Advertisement
Advertisement
Advertisement

Fourth, the left needs to develop shared scholarship and theory, much in the way the right unified around the idea of originalism. In developing a shared theory, however, the legal left must be careful not to confuse the purpose behind the effort: Legal theory is not about the search for the correct answer, because no such answer exists. The law is not like climate change, where rigorous and well-intentioned scientists can get together and tell us objectively that we are warming the planet. Rather, the law is socially constructed. Creating shared theoretical scholarship shifts the movement from one perceived as outsider or fringe to one that appears legitimate and within the established bounds of the profession. And to the extent the effort is successful, it will then create more favorable political terrain on which the left can fight.

Finally, lawyers on the left should consider carefully how the conservative legal movement navigated relationships with other rightwing organizations. Lawyers and legal movements, whether on the right or the left, are but one piece of a much larger political struggle; if events break poorly for your movement outside the law, your influence within the law may diminish too. Thus, just as FedSoc worked with big business and the Christian right to establish its Supreme Court supermajority, a LeftSoc would need alliances with organized labor, social movements, and community groups to advance our goals; just as FedSoc worked with and within a more moderate GOP, the left needs to leverage the sleeping giant that is the Democratic Party.

The effort to build and organize a fighting left within the law is already underway. Organizations like People’s Parity Project are trying to create a leftwing pipeline to the federal judiciary. The Law and Political Economy Project is building legal theory for the left. The National Lawyers’ Guild is doing the hard work of recruiting new law students to a shared political project. But with so many different organizations, their various projects happen somewhat parallel, sometimes with overlap, and occasionally in tension or competition with each other. As a small minority within the liberal institutions we must change, and an even smaller minority within the law as a whole, we cannot afford our efforts to be divided and uncoordinated.

Conservatives have a death grip on the Supreme Court, and by extension, much of the law that governs our lives. Until lawyers to the left of the political center learn to fight collectively for a better world, that grip will only grow tighter. Because, at the end of the day, no “superstar” is coming to save us.

Advertisement