William Holcombe Pryor Jr. is the chief judge of the 11th U.S. Circuit Court of Appeals. Based in Birmingham, Alabama, this position means he bears responsibility for administration of the 11th Circuit and presides over any session he attends, including major cases heard en banc. He was one of three judges who recently ended the disruptive reign of a special master over the criminal investigation into Donald Trump. Pryor is a leader of the conservative judicial movement, a repeat shortlister for the Supreme Court, and a longtime member of the Federalist Society, a network of right-leaning lawyers who frequently meet, debate, and promote one another into the upper echelons of legal and political power.
It was no surprise, then, that Pryor delivered the opening speech at the Federalist Society’s National Lawyers Convention in November. Somewhat less expectedly, he joked with the audience that, after hearing progressive criticisms of the organization, he had embarked upon an “odyssey” to “get to the truth,” searching in “the shadows, where the real operation of the Society happens.” He went on to lob comic insults at a number of left-leaning journalists, including Elie Mystal and my colleague Dahlia Lithwick, who have written about the inner workings of the Federalist Society—a bold and unusually personal retort to criticism. He also made fun of me. “No less an authority than Mark Joseph Stern,” Pryor said. And then, responding to knowing laughs from the audience, he added: “And really, is there any less an authority?” He then quoted my February article describing “the conservative legal movement’s radicalization machine.”
I’ve criticized Pryor’s rulings pretty harshly over the years, and I took his comment as a badge of honor: His quip at my expense—and the audience’s knowing laugh in response—told me that Slate’s extensive, skeptical coverage of the Federalist Society has gotten their attention. I also saw it as an opportunity. One week after his speech, I reached out for an interview. It felt like a long shot: Federal judges rarely speak with journalists on the record, and almost never agree to the kind of conversation I was after. They are famously media-shy, preferring to communicate with the public through written opinions and speeches in controlled environments with friendly audiences. To my surprise, Pryor quickly responded to my email and suggested a call the next day to talk through my proposal. When we spoke, he told me that while he was very busy, he had time—at that very moment—to answer my questions.
I wanted to talk to Pryor both because of his prominent role in the Federalist Society and because judges so rarely discuss these issues with journalists on the record. He gamely answered my questions, though many of his responses repeated familiar talking points—indeed, they reflect the frontstage/backstage dynamic that the Federalist Society has mastered since its foundation in 1982. The public-facing work of the organization, like its panel discussions, debates, and academic symposia, can seem unobjectionable. The problem with the organization is that it holds a prominent position within a sprawling dark money network that promotes conservative judges, causes, and politicians, with Leonard Leo—the Federalist Society’s hugely powerful longtime leader—at its center.
The same dark money slush funds that generously finance the Federalist Society also paid to promote Trump’s nominees, who were largely hand-picked by Leo himself. Today, these funds pay for the character assassination of Joe Biden’s nominees, with the money funneled through a series of shell corporations to render it untraceable. The Federalist Society’s deep political and financial ties are one reason why it’s so controversial for sitting judges to remain members and participate in events; the Judicial Conference Committee on Codes of Conduct even proposed banning judges from membership in the Federalist Society, but backed down after more than 200 judges protested.
It is the media’s insistence on explaining these ties, as well as the people who find them disturbing, that Pryor mocked in his speech. I confronted him with the facts repeatedly in our interview, and like most Federalist Society members, he dismissed their importance, focusing instead on frontstage activities that depict the organization as a mere debate club.
As a condition of our interview, we agreed that Slate would publish a transcript of our conversation, with only minor edits for length and clarity. I also agreed to show him a final transcript that identified the cuts to confirm that the edits did not change the meaning of his responses. While the judge had no input on the published transcript, he did see it in advance of publication. As a standard, Slate does not do this. But we are making an exception in this case due to this unique circumstance; this was an extraordinary opportunity to press a sitting judge, on the record, about an organization that now dominates the federal judiciary and bends American law sharply to the right, toward the policy preferences of the modern Republican Party. That edited conversation is below.
For reference: Judge Pryor attended Tulane University Law School from 1984 to 1987.
He served as attorney general of Alabama from 1997 to 2004, when George W. Bush appointed him to the 11th Circuit. He has served as chief judge since June 3, 2020.
Mark Joseph Stern: Let’s start with your experience with the Federalist Society in law school.
William Pryor: I had read about the Federalist Society as a new student organization at law schools in National Review. I started subscribing to National Review in college. I thought I should get in touch with this organization I had read about and see about the possibility of forming a student chapter at Tulane. I called the number that had been advertised in National Review and Gene Meyer, the only employee of the Federalist Society, answered the phone and told me there was already another student at Tulane, Eric Weimers, who had contacted them and found a faculty advisor. I found Eric, and we planned the first event for the chapter that spring. The novelist Walker Percy had a brother named Phin Percy who taught constitutional law at Tulane and was regarded as right of center. He graduated from UVA Law School. He had been to the Naval Academy and was in the same squadron of PT boats as JFK. He was our first speaker.
My second year, I was president of the student chapter. I worked with the national office on finding speakers to speak at our law school afterward. We held a reception for Attorney General Edwin Meese immediately before his speech to a university audience, and when he got up to give remarks at the reception, the only thing he wanted to talk about was the Federalist Society. He allowed me to publish the remarks he was going to give that night in the Law Review. It ended up being a hugely controversial speech, which was great for the Law Review. General Meese brought Steve Calabresi with him, and that was the first time I had an opportunity to meet Steve. As a result, General Meese and I became friends. He helped me at various stages of my career—particularly when I entered public service, when I became a state attorney general. In many ways, the Federalist Society made that possible.
Do you feel like your involvement helped you on your path to the federal judiciary?
In a way it did. Of course, a lot of things helped me with that path. This was the Reagan era, and a lot of college students were more conservative than the faculty. Reagan was pretty popular on a lot of college campuses, particularly in the South. There were conservative or libertarian perspectives about the law that we would not necessarily hear in the classroom that the Federalist Society would enable us to hear through speakers and debates. It gave me a broader perspective about law and fundamental debates. I likely would have gone home to Alabama and just been a commercial litigator, but the Federalist Society made me think more broadly about constitutional law and the role of the legal system.
Do you have a relationship with Leonard Leo?
I see Leonard occasionally. Now that he has moved to Maine, I don’t see him as often. But I saw him, for example, at the convention. I do consider him to be a friend.
There’s been a lot of attention on Leo lately, and he’s kind of a mysterious figure outside the Federalist Society. It’s been reported that he had a really outsized influence on President Trump’s selection of Supreme Court justices and appellate judges. What do you think of his influence over the Trump administration’s judicial nomination process?
I know he was hired by the administration and took a leave of absence from the Federalist Society to advise them about nominations. [Note: Trump reportedly consulted with the Federalist Society when compiling a list of possible candidates in 2016, when Leo was still executive vice president.] I don’t otherwise really know much more than that. I saw him on network television where he would speak on behalf of the administration he was advising.
Today, Leo is co-chairman of the board of directors. You probably saw recently that he received a $1.6 billion piggy bank to spend on conservative causes. Do you think that threatens the image of the Federalist Society as nonpartisan and just sort of a debate club of ideas?
I think that Leonard, over the years, has become more involved in outside interests, including political fundraising and other kinds of issue advocacy that I think had a lot to do with the fact that he’s no longer a full-time employee of the Federalist Society. Those interests probably led Leonard into thinking that his efforts on the outside were a greater priority to him. I think the Federalist Society was sensitive to the concern that what Leonard did would be viewed as necessarily what the Society does, particularly when he was a full-time employee. It’s the same kind of sensitivity that caused the Federalist Society to tell Leonard he had to take a leave of absence when he was involved, full-time, in advising presidential administration of judicial noms. Leonard’s role as co-chair of the board of directors is a more removed and deferential role than what he played in the past and I think it’s because of those kinds of activities.
I understand that, as co-chair of the board, he’s more removed than he was as a full-time employee. But I’m curious if you think his continued involvement while having all this money to spend on these causes is going to damage the reputation of the Federalist Society. This is a real concern among a lot of professors who participate in Federalist Society events, including some liberal professors who do believe it’s a debate club.
It’s something the Federalist Society has to be sensitive to and concerned about, and has been. I think sometimes the criticisms of the Federalist Society frankly are a reflection of a misunderstanding that really is rooted in a different way of thinking about how the world works. I think sometimes a lot of people on the left side of the political and philosophical spectrum view the world and social change and political action and other kinds of activity as being top-down, centrally planned. Command and control. That the way to make things happen is to do it in a top-down fashion. From the right or libertarian side of the spectrum, I think people see more of a bottom-up view of the world and how things happen. It’s more Adam Smith and invisible hand. Friedrich von Hayek would call it spontaneous order.
The secret of the Federalist Society is that it’s much more of a bottom-up organization. It has created this forum and this marketplace for ideas of debate and discussion. As a result of that, a lot of relationships are formed. Connections are made through a network. A lot of people who would not necessarily know each other end up doing other things together that are not what the Federalist Society does. Criticisms of individuals affiliated with the Federalist Society, and imputed to the Federalist Society itself, are a reflection of that different kind of worldview.
I think there’s an example that might show how this decentralization cashes out in the real world. Famously, at least two individuals who are long affiliated with the Federalist Society, John Eastman and Jeffrey Bossert Clark, advised President Trump on his efforts to reject the results of the 2020 election. Now, I think we all agree they were not doing that on behalf of the Federalist Society. But there were calls to ask the Federalist Society to distance itself from that, to repudiate and disavow what these two men were doing, and the Federalist Society declined to do so. Do you think that reflects at all on the organization?
I don’t. You have to remember: I think it would be inappropriate for the Federalist Society to endorse that activity, too. I don’t want to say the Federalist Society is neutral. It has a mission statement that says it exists to preserve freedom, and that separation of powers is central to the Constitution. That is not a neutral mission statement. But it’s a very broad philosophical mission statement that is very deeply rooted in the Anglo-American legal tradition.
And really, that’s it. That’s the sum and substance of what the Federalist Society stands for. Leadership of the Society has been very guarded about trying to make it clear that that’s it. That’s all the Federalist Society really stands for and endorses. To the extent that individuals publish material in Federalist Society publications or say things in Federalist Society debates or programs, they’re always saying those things in their individual capacities. They’re not saying it on behalf of the Federalist Society. I think it’s critically important that the Society continues to run their programs that way. It’s not their place to comment on the politics of the moment—no matter how horrible some things may appear to be one way or another. Or how good they may seem to be one way or another.
But there have to be some issues, some arguments, some claims that are beyond the pale—like support for a failed coup that led to a violent insurrection. And when the individuals making those claims are so closely connected with an organization, do you not think there’s value in that organization distancing itself from them?
I think a lot of individuals who are affiliated with the Federalist Society have done that. In the lead-up to the 2016 election, a lot of originalist scholars who were opposed to the election of President Trump signed a statement, Originalists Against Trump. It looked like a lecture circuit list of possible speakers for the Federalist Society. It featured a lot of individuals who can comment on the politics of the moment. A lot of us are not going to comment on those things at all, any more than we would have signed a letter about a presidential candidate. I really am less interested in belonging to an organization that is getting into those kinds of political debates at that kind of granular level.
In the last couple of years, justices of the Supreme Court who are affiliated with the Federalist Society have made appearances at Federalist Society conventions and delivered speeches that are often received rapturously, with standing ovations. And on the left, the view is often: Well, these people are just applauding a fellow member of their club who is going to help them achieve all their goals; they’re celebrating the elevation of this person to power because they think it’ll help them with their own personal causes. What do you make of the impression created by justices attending these conferences and getting this rapturous reception?
Any group is going to have role models, individuals who a lot of members admire. My guess is that if you went to an American Constitution Society meeting and Justice Breyer or Justice Ginsburg had been introduced, there would be rapturous applause there as well. I think that’s OK. Justice Kennedy would frequently speak at the summer meeting of the American Bar Association following a Supreme Court term and would get that kind of reception there, as well. In our legal culture, there are a lot of organizations of lawyers and law professors and judges where a lot of the leadership and members have role models within the legal culture. What’s different is that a lot of legal conservatives didn’t have that kind of organization and didn’t have those kinds of role models until recently.
One difference is that six justices of the Supreme Court today have some affiliation with the Federalist Society. And especially if you’re a casual observer of the news, and you turn on the TV and see four of them at this convention getting celebrated, you might think: Well, this is just a pack of partisans who are going on the road to receive their due.
When the six justices get a lot of applause and admiration and appreciation from an audience of the Federalist Society because the members admire them, and in a very broad sense, share a philosophy about the judicial role with them—I don’t think that’s unusual at all when you compare it to the ABA or the American Law Institute. I really think the only difference is that it’s now a conservative legal organization that’s a new entrant.
A group called DonorsTrust, which provides lots of dark money to conservative causes, recently gave the Federalist Society $3.7 million. I’m curious what you would say to someone who’s skeptical of the Federalist Society, who sees these figures and says: Well, this is just another way to launder conservative policies through the judiciary. This is another way of building a base of power in the courts that will allow Republicans to impose their ideas from the bench. When the same dark money group that’s giving funds to the Federalist Society is also giving a ton of money to Republicans, it might raise some eyebrows.
My understanding is the kind of donors you’re talking about tend to be foundations. And I would say if you have a concern about it, you ought to look at what the Federalist Society actually does with the money. And what it does is it sponsors programs that can only fairly be termed as educational. It’s focused on debates and discussions about contemporary legal issues on many topics. And Federalist Society programs have a wide variety of speakers. The panel discussions are very balanced to have a diversity of viewpoints. I’ve had many panel discussion events where I participated and had my biggest disagreement with a so-called conservative on the panel. If the idea is that this money is being used to promote a single agenda, a single idea, it seems to me it’s phenomenally unsuccessful because the programs are just not designed that way.
Let’s turn to clerks for a moment. What are your thoughts on some federal judges’ decision to boycott Yale Law School by refusing to take clerks who graduate from YLS?
I’ll only talk about what I do. I try to hire law clerks based on merit and who I think would work well in my chambers, and work hard. I don’t exclude any law school as a potential place for a student to apply to me as a law clerk.
I wanted to ask about my specific article that you quoted in your speech, because I thought it was an interesting choice. The quote was about Judge Jerry Smith, not exactly a raging liberal, strongly suggesting that the clerks of his colleagues had pushed them further on this issue—religious exemptions to vaccine mandates—than they otherwise would’ve gone. And I think Judge Smith may have been hinting at a phenomenon that I believe is real. There is a strong incentive in law school for individual students to join the Federalist Society and to adopt very conservative views because to get a Supreme Court clerkship—or even an appeals court clerkship—you’re much more likely to land with a conservative judge than a liberal judge, just going by the numbers.
It seems to me there’s this cycle where students push further and further to the right to prove their ideological purity and attract the attention of judges who are looking for very specific kinds of work. And that is fueling what I called the radicalization machine. I think this cycle rewards and incentivizes the adoption of certain unyielding views among current law students, who then become clerks who may eventually become judges. So I’m curious for your view on why I’m wrong about that.
I picked the quote because it was over-the-top rhetoric and a caricature and I thought people would find that humorous. I think that perspective demeans both the students and the judges. First of all, the students—I think the students are adults and take ideas and legal philosophy seriously. I think really what the Federalist Society ends up doing is providing an organization where a lot of students who are really into nerdy debates about the law can gather and do that. Those kinds of students are attractive to judges. It used to be, I think, that a lot of law clerks were drawn from who made the best grades, who was on the Law Review, who was active in political campaigns. But legal philosophy and legal methodology really matter. And as that was taken more seriously, both law clerks and judges were more attracted to each other. I have no reason to think that the law students are changing their views and becoming more radical. I think we end up getting law clerks who are just much more interested in law as law. A lot of those students become members of the Federalist Society.
So you don’t think there’s an unfair advantage for conservative students at law schools today in terms of landing prestigious federal clerkships?
I didn’t say that. Many judges, me included, are interested in having law clerks who in a very broad sense share a perspective about what the judicial role is. Judging is an objective enterprise. I think there are right and wrong answers to the cases that come before us. And the right or wrong answer depends on what the law actually is. Not everyone shares that perspective. I’m interested in law students as potential law clerks who do, in a general sense, share that perspective. My law clerks often have a variety of political views and support a variety of political perspectives and candidates. Some vote for Democrats. That’s not what I care about. I care about their view of judging and how law works. Many different kinds of law clerks are attracted to the Federalist Society. It promotes an idea that law is an objective enterprise.
Steve Calabresi, a law professor who is a co-founder of the Federalist Society and co-chairman of its board of directors, filed an amicus brief defending the North Carolina Supreme Court’s authority to strike down a Republican gerrymander. He took the opposite view of the Honest Elections Project, a group closely affiliated with Leonard Leo, which defended the gerrymander. Calabresi told Nina Totenberg that the Federalist Society’s board of directors instructed him to ask journalists not to identify him as co-founder or co-chairman. What do you think about that request?
I think it is important, for all the reasons we discussed at the beginning of this interview, to distinguish between members of the Federalist Society and the organization itself. Members have their own individual views. I think it’s a good thing for the organization to do what it can to help people understand that distinction. The media can report whatever they want to in identifying Steve. There’s nothing the Federalist Society or anyone else can do about that. But I think it’s probably fair for the organization to tell that to Steve when he speaks.
There are often members of the Federalist Society who provide a conservative viewpoint on Supreme Court cases to the media, and the board of directors doesn’t instruct them to conceal their affiliation. What seems different here, it seems to me, is that Calabresi was endorsing a view that is considered to be more liberal, more left-leaning. It looks as if the board of directors wanted to distance itself from Calabresi only because he was promoting a progressive viewpoint, not just any viewpoint at all.
I just don’t think that’s true. I don’t know what the other instances would be where other individuals who have been active in the Federalist Society have spoken about some pending case or controversy, and it has been understood that when they were doing so, they were speaking on behalf of the Federalist Society. And if people thought that, I think that would be a misunderstanding, I think whenever those individuals, whoever they might be, are speaking, they’re speaking on behalf of themselves.