Inside the Right-Wing Judicial Machine
Speaker 1: If you are a conservative lawyer with big ambitions, Slate’s Mark Joseph Stern says every November there is just one place you want to be. The Mayflower Hotel in Washington, D.C. That is where the Federalist Society hosts its National Lawyers convention.
Speaker 2: Oh, yeah. Oh, my God. If you are a Federalist Society member, you have your calendar cleared months in advance.
Speaker 1: To be honest, Mark usually clears his calendar for this event, too. The Federalist Society is a right wing networking organization that has counted Supreme Court justices among its members. Eavesdropping here has a way of telling Mark which way the legal winds are blowing. This year, Mark had not yet booted up his computer to tune in when a friend and colleague DM’d him urgently To say, you have got to pull up this live stream right now.
Speaker 2: He texted me and said, Oh boy. Judge Prior is giving the opening address and he just insulted Dahlia Lithwick.
Speaker 3: From the start, the federal society has promoted rigorous and open debate as the best way to ensure that the founding principles of our Constitution receive a fair hearing and the results speak for themselves.
Speaker 1: This speech is delivered in a kind of lawyerly code, so I’m going to translate The guy who’s speaking, William Pryor, is a federal appellate judge from Alabama, and he’s trying to be funny calling out reporters like the ones here at Slate who openly worry that the Federalist Society has amassed too much power.
Speaker 3: Is there more to the Federalist Society than meets the eye? What do we really do? After 40 years, I decided it was time to look harder and investigate the secretive and mysterious network that critics charge has captured the federal judiciary, including.
Speaker 1: Judge Pryor, starts name dropping about 10 minutes in.
Speaker 3: As the writers at Slate and Dahlia Lithwick and Rick Hasen explain. The Federalist Society has, quote, styled itself a debating society long after it ceased to be anything of the sort.
Speaker 2: And at first, you know, I was offended on Dalia’s behalf, but my second thought was, Oh, I hope he does me next. I really, really hope that that I’m going to be on on the Insult comic hit list.
Speaker 1: Mark got his wish.
Speaker 3: And no less an authority than Mark Joseph Stern and really is their lesson authority. He has explained Federal Federalist Society judges tend to hire Federalist Society clerks, and the conservative legal movement’s radicalization machine produces an endless line of young lawyers, even more extreme than their predecessors over the past half century. Each generation of conservative attorneys this judge.
Speaker 1: William Pryor. He’s basically accusing journalists like you of misunderstanding people like him and especially the group he’s speaking in front of the Federalist Society. He’s joking that you think of the Federalist Society as a radicalization machine. Does the judge have a point here? Are you kind of paranoid?
Speaker 2: I don’t think I am. I think that what’s funny is that we all sort of agree on some level about what’s going on, which is that more and more conservative lawyers and even law students from a young age are joining Fed sock, as we call the Federalist Society, like cleaving to its ideas and adopting an extremely conservative kind of orthodox mindset about the law.
Speaker 1: Well, they would say maybe these people have an appropriate respect for what the judiciary does.
Speaker 2: Exactly. That’s exactly what they’d say. And that’s not radicalization. That’s just a return to the constitutional order.
Speaker 1: To me, it was kind of eerie to see this judge giving a speech with all the trappings of a Tucker Carlson monologue, but that did not really bother Mark to him. His next move was kind of obvious. He wanted to see if he could get this judge on the phone.
Speaker 2: Yeah. Yeah. I mean, that was my immediate reaction was, okay, you’ve named me like you’ve invoked me. I’m I feel like I have a right to call you up and ask you the questions that no one at this convention will ask because it’s a friendly audience. Like, how about we actually get into the nitty gritty here? And even if you just want to read me the script that you always give, like at least do it in response to real questions that you’re trying to dodge rather than at a convention surrounded by your fans in a comic insult monologue.
Speaker 1: Today on the show, what happened when this judge said, sure, let’s talk. I’m Mary Harris. You’re listening to what next? Stick around.
Speaker 1: Before we get into what happened when Mark Joseph Stern called up a federal judge who clearly has beef with him, I asked Mark to explain a little bit more about who this judge is. He said Judge William Pryor has been on his radar for a while now. He was even shortlisted for the Supreme Court a few years back. At the time, Mark labeled him the one SCOTUS nominee. Democrats should stop at any cost. Mark is cheered on some of Judge Prior’s decisions, like when Pryor shot down Donald Trump’s attempt to slow down a federal investigation into those confidential documents found at Mar a Lago. But then there was the time Mark called Judge Pryor odious. That was back in 2017. Pryor had argued businesses could discriminate against their gay workers.
Speaker 2: And some of his other decisions that he’s authored. I mean, they just feel like they’re really hard, right. And rejecting so many principles of equality that the Supreme Court enshrined over the last 50, 60 years. And it felt to me like he was sort of dangerous in his total commitment to these culture war cases, where I felt his personal views may be eclipsing what the law actually requires.
Speaker 1: How does someone like Judge Pryor as this culture warrior, fit in at the Federalist Society? Like, is there a comfortable place for him there?
Speaker 2: Yeah, he fits in perfectly because one of the tenants of the Federalist Society and it’s interesting they say this on their website, is that they promote traditional values. And that is not, to my mind, a neutral statement.
Speaker 1: You’re bringing up something interesting, which is how the Federalist Society describes itself. You know, they describe themselves as conservative, as libertarian, as having an Anglo-American approach, historically Anglo-American approach to the law. Is that correct?
Speaker 2: Yeah. And the separation of powers that they believe deeply in, the constitutional separation of powers, which is sort of a buzz word, are a phrase that really means they oppose the administrative state, which is all of those federal agencies that actually interpret and enforce the law, like the Environmental Protection Agency, like the Department of Labor, like the Consumer Financial Protection Bureau, that they think those are infringing on the separation of powers by combining executive and legislative power. And I just don’t think that’s a neutral position. I think that it’s just wrong for a Fed SOC to claim that it doesn’t take any position on any major issue or even a small issue when its mission statement is that it promotes these traditional values and ideals that again, really do align very neatly with what the Republican Party platform says today.
Speaker 1: If this organization is so conservative, how is it that a judge like Judge Pryor is able to speak in front of them? Like, aren’t there rules about judicial code of conduct and what they can do and not do?
Speaker 2: Yeah, so that’s an interesting question with an interesting answer. So this has been very controversial within the legal community for a really long time. And like you can understand why, as you said, the image of these judges getting rapturous applause for essentially being very conservative and specifically socially conservative, that looks a little odd. I think it looks strange to see that the fan club celebrating their hero.
Speaker 1: These partisan connections look so odd, in fact, that the judicial conference of the United States actually proposed banning federal judges from membership in the Federalist Society, as well as its liberal counterpart, the American Constitution Society. There was a huge backlash, mostly by conservative judges. Justice Clarence Thomas called it an effort to silence the Federalist Society. And in the end, the judicial conference backed down.
Speaker 2: So, yeah, it’s controversial. It’s been debated. There’s there’s a policy that’s been raised and defeated that would try to create some kind of wall of separation between judges and Fed stock. And it just it didn’t work.
Speaker 1: If you watch that speech given by Judge Pryor, you can hear the way Federalist Society members like him characterize their own organization in this interesting way because he tells the story of the founding of Fed Zach. It started within a symposium at Yale University in the eighties, and then it grew because people like Judge Pryor got involved and were clamoring for more of this. Like he describes. He was a conservative guy. He subscribed to the National Review in college. And after this symposium, he got to law school at Tulane, and he calls up the Washington office of the Federalist Society, where one person’s working and is like, I want to start a chapter.
Speaker 3: Of course, there was no Internet to search, yet none of us students could yet afford personal computers. Nor did we have cell phones. But William f Buckley Jr. Was publishing National Review, which had covered the formation of the Federalist Society. I searched my several back issues and found an advertisement for the society with a phone number for an office in Washington, D.C..
Speaker 1: So I feel like it’s important to this group that part of how they were founded was all these law students looking for an outlet for their energy.
Speaker 2: And a deeply grassroots organization that was simply, as you said, a bunch of students and some conservative lawyers and professors who needed a home who were homeless and stateless and wandering around in the desert seeking each other’s company. And so this group just sort of formed organically and grew organically.
Speaker 1: Is that true?
Speaker 2: So I would say yes and no. The worst answer. Mary, I know. I’m sorry. Yes. Yes, it’s true in the sense that there was a grassroots element to it, that it was really a bunch of conservative students and professors who started it. But no, it’s not true in the sense that it pretty quickly became something different. It pretty quickly became a very powerful club or network of folks who held prominent positions, who could lift each other up through the ranks of the legal system and achieve really high profile posts, including judgeships, including spots of the Department of Justice, state attorneys general, and moved beyond this bottom up grassroots club into a super influential network of powerful people who helped each other get powerful and stay powerful.
Speaker 1: But isn’t that just networking? Like, I mean, to be devil’s advocate here. Sure. I think the Federalist Society would say that’s not the Federalist Society’s fault. Right. The same way that Twitter would say hate speech on Twitter isn’t Twitter’s fault. Twitter’s just a place for people to go talk.
Speaker 2: Well, I guess I would say it’s a different thing when the Federalist Society has been sort of inculcating these people from the very beginning with very nicely catered lunches in law schools, swanky parties and panels and conferences and academic symposia, and getting everybody on the same page about what the targets are going to be. And now they are all working together to pursue the goals that they fantasized about together a decade ago. And that, to me, feels wrong. Maybe it doesn’t to others. To me, it doesn’t. It doesn’t sit right.
Speaker 1: Yeah. And this kind of brings us back to the speech that Judge Pryor gave, because his speech was all about how the mainstream media, how people like you have characterized the Federalist Society. Like, at some point, he put up a slide that was like some food and he was like, ha ha, we have these lunches. That’s how we get them.
Speaker 3: I suspect many of the law students here today are here for one day. The food as Vox.com report, students and faculty, quote, always attend the Federalist Society events because they have the best food and the best alcohol.
Speaker 1: And it was you know, it was assigned to me that this criticism is at least hitting the mark. You know what I mean?
Speaker 2: I think so. I think that it’s simultaneously hitting the mark and still all too easy to dismiss for the reasons that I think you just sort of pointed at, which is that it’s not a literal conspiracy. I’m not accusing these guys of being conspirators. What I’m saying is that they all had the same formative experience together, developed the same goals together, and then helped each other, got different powerful positions where they could execute those goals very efficiently.
Speaker 1: When we come back, how Judge Pryor answered these criticisms.
Speaker 1: So what happened when you got Judge Pryor on the phone?
Speaker 2: So I emailed Judge Pryor.
Speaker 1: Like, Hey, I’m the guy from the speech.
Speaker 2: Yeah. Hey, remember me? Remember when you made fun of me? And he responded fairly promptly and basically said, you know, look, I’m interested in this, but some of the stuff you’ve written about me and about the Federalist Society has been over the top. And so I’m sort of worried that you you might be unfair. Basically, that’s I’m summarizing, but that’s the the basic concern. And I wrote back and assured him that, you know, in fact, what I really wanted to do is have a conversation that we could just slap on Slate.com, that we could post a transcript of and let readers decide for themselves. And I called him and we chatted through it and basically said, Well, if those are your terms, we can do it right now. And when when a federal judge says they’re willing to talk on the record, you do not reschedule.
Speaker 1: Mark and Judge Pryor stayed on the phone for about an hour. And reading the transcript of that conversation. Slate published most of it. It seems like there are a couple of things Pryor was keen to get across. First, that the Federalist Society is a bottom up organization driven by its grass roots. And second, that the society itself is not responsible for individual members actions, since not all members share the same points of view. That last point was especially interesting to mark because some prominent Fed SOC members have been wrapped up in pretty nasty politics. A lawyer named John Easton was one of the few people telling Donald Trump how he could stay in power after the 2020 election. Former Department of Justice official Jeffrey Bossert. Clark was doing the same.
Speaker 2: The two lawyers who provided the intellectual and legal scaffolding for Trump’s failed coup, the guys who put on paper exactly how this could work and tried to execute it. They were both really, really prominent Federalist Society members who were so closely associated with the group that it’s like you say, their names and the response is fed SOC. I asked Judge Pryor about both of them in response to his claim that this is a bottom up organization, that members are free to kind of go their own way. And so I said, Well, what does it say about Fed SOC that when two of its prominent members decided to go their own way, they went the way of a coup and that Fed SOC didn’t even condemn the coup or cancel their membership or do anything to distance itself from them.
Speaker 2: And you know, his response, I think, was not super satisfying, but still somewhat illuminating. He said, basically Federalist Society doesn’t take positions. We do not endorse anything. We do not say that we support or objects to particular legal theories. And so even when something seems really horrible that our members have done or that’s going on, we have to stick to that position because once we break it, once we’ll break it forever. And it’s critically important that we adhere to silence when it comes to the disputes and controversies of the day.
Speaker 1: Hmm. Yeah, it’s interesting because the judge acknowledged how important the connections that the Federalist Society helps people make are like they can make your career. But then it seems like as soon as someone does something a little off, it’s like, Oh, I don’t know her. It’s it’s a weird approach where, like, the connections are everything. And then if you do say, okay, I don’t know that guy, that guy, woof. He was on a panel once. I don’t know.
Speaker 2: Yeah, I mean, certainly, you know, I would love to tell you that the Federalist Society as a whole has, like, fully embraced John Eastman and Jeffrey Bossert. CLARK So that I could say, see, look, look how, you know, hypocritical and corrupt they are.
Speaker 1: But it sounds more complicated than that.
Speaker 2: It’s what you just said. They’ve tried to maybe distance themselves. You don’t see these folks inviting John Eastman or Jeffrey Bossert Clark to the National Lawyers Convention of the Federalist Society. They aren’t hanging out with them at the Mayflower. They’re trying to sort of quietly step away without formally breaking off ties, without formally expelling them from the group, without doing anything that would show, in my view, backbone and principle. And for that reason, some liberal academics who participated in Fed sock events for years, for decades, have refused to continue doing so until Fed Socks speaks up and revokes the membership of coup abettors. And that has put Fed Sock in an interesting and difficult position. And that’s the position I really wanted to depress with Judge Pryor.
Speaker 1: Yeah. You know, this point that the judge really wanted to hit home about how people like you, journalists in general, in the mainstream media, want to think there’s some hidden force shaping the conservative legal landscape. And that’s just not it. It’s, you know, individuals doing their thing. It’s not you know, there’s no one behind the curtain.
Speaker 1: It reminds me of something else, which is in the last few years, I’ve heard a lot about this concept known as stochastic terrorism. It’s kind of like disorganized terrorism. It’s it’s violence made possible by cultural shifts and incendiary language rather than a central leader. And reading her interview with Pryor, I wondered if he’d ever consider that the Federalist Society was enabling stochastic lawyering. Like, maybe he’s right. Like, there is no hidden hand guiding everything. But it doesn’t necessarily make what the society’s doing less dangerous.
Speaker 2: First. I think that is a great question and a great framing. I do just want to be clear that like of course, the Federalist Society is not a terrorist organization, you know, like these. These are fundamentally different concepts that you’re describing. But I do completely agree that what its members, especially the prominent ones do, is signpost to the membership, to the rank and file, where the movement is going, and give said SOC lawyers enough to work with so that they can pursue that path or that goal. And it does not require a single top down instruction because everybody gets it. If they’ve been in this club. Everybody who came up in the Fed SOC knows exactly how this works and how to take those signals from leadership and to run with them.
Speaker 2: And one great example of how this works is the first two Obamacare challenges, where we’re an ideal example of what you just described, stochastic lawyering, right? These Fed SOC members come up with these challenges to the Affordable Care Act. All of their friends and allies kind of get on board and develop complementary arguments and briefs and take their side. And it doesn’t work right.
Speaker 2: Then this third challenge to Obamacare arises this really ridiculous challenge from a few years ago, where the idea was that just because Congress zeroed out the penalty for people who are uninsured, that it somehow destroyed the entire Affordable Care Act and it all has to be blown up. And a couple of Federalist Society members devised this theory. And most of Federalist Society, I would say, didn’t really like it. You actually saw a lot of prominent Fed SOC members saying this is absurd. This is a bridge too far. This is making us look bad. And those more prominent members almost sort of sent out the signals that they were not going to get on board with this challenge.
Speaker 2: And while the previous cases were decided by a narrower margin, this one was seven two in favor of Obamacare. This one got Clarence Thomas to vote in favor of of Obamacare. And I just think that shows the power of this organization that the signal sent from the top can almost sort of make or break a case and say where the lines are for what’s reasonable and what’s not.
Speaker 2: When it comes to lawyering, yeah.
Speaker 1: It’s interesting in terms of creating a climate that is harsher. Like I wondered, watching Judge Prior’s speech where he mentioned, you know, if he himself would have given this same kind of speech just even ten years back. Because it’s not it wasn’t a typical. Judge’s speech. You know what I mean? And it made me think about how. The Federalist Society has enabled this newer, harsher way of talking and thinking. And whether you think that that was on the judge’s mind as well when he spoke to you.
Speaker 2: So, yeah, and that’s part of what I was talking about when I wrote about this radicalization machine that he found to be so grievously wrong and criticized in his speech. I think that there is a shift not just in substance, but in tone among conservative judges. And it’s especially noticeable among a lot of Trump judges, Trump’s nominees to the judiciary.
Speaker 2: I have this take no prisoners style of writing, of talking, of questioning where they almost sound like like shock jocks saying these really wild things about how, you know, abortion is a moral tragedy and anyone who supports it is essentially a barbarian. About how the COVID vaccine is fake and doesn’t work and putting all kinds of anti-vax stuff in their opinions, saying offensive stuff about transgender people, refusing to use their preferred pronouns, all this stuff that kind of defies basic judicial temperament, norms that is coming out in a lot of Trump judges opinions.
Speaker 2: And I almost feel like it’s creeping into Judge Prior’s life and work here because he has been, for most of his career, a kind of old fashioned Southern gentleman. I think that he still is That is the image that he presents to the world. But this speech was very much in the new Trumpian style of naming and shaming your critics of saying out loud what used to be implied. And I think that just shows the widespread effect of these Trump judges kind of encouraging all of their allies to unleash their inner Trump. Whether it’s in little ways like a short speech to Fed stock or in big ways like a majority opinion destroying some part of the Biden administration or the federal government. It is more and more common to see this really explicit kind of parties in writing and talking in the judiciary.
Speaker 1: Has the judge sent you many of his thoughts after this piece ran?
Speaker 2: I believe that he enjoyed it. My sense is that he liked the piece and thought it was fair.
Speaker 1: Hmm. Did you ever get a sense of exactly why he wanted to talk to you?
Speaker 2: You know, I think that he is an evangelist for the Federalist Society, and I think that he has a really smooth, even persuasive way of talking about it, especially since he was involved from the very early years. And he can paint that picture of the grassroots movement coming to life under Reagan. And I think he wanted to set the record straight to me just as badly as I want to just set the record straight to him. And that we both had these particular views that we wanted the other to hear.
Speaker 1: Did you guys find any any common ground?
Speaker 2: Yeah, I think this is what I was going to say. I don’t want to toot my own horn too much, but I actually felt like we were talking to each other rather than past each other. One of the pieces of common ground that we settled on was that it is true that there is no vast conspiracy here. It is true that there is no kind of sweeping, top down mandate to pursue these particular policies and goals that stochastic lawyering as you described it. I’m sure he would use a different term. That that is that is what’s happening. I think it makes it more dangerous. He thinks it makes it a lot fairer and more transparent. But we agree that that is how it works.
Speaker 1: Mark Joseph Stern. I’m super grateful for your time. Thanks for coming on the show.
Speaker 2: Thank you so much, Mary.
Speaker 1: Mark Joseph Stern writes about the courts for Slate. And that is our show. What next is produced by Elena Schwartz, Carmel Delshad and Madeline Ducharme. We are getting a ton of support right now from Anna Phillips, Jared Downing and Victoria Dominguez. We are led by Alicia montgomery and Joanne Levine. And I’m Mary Harris. Go talk me down on Twitter. Say hello. I’m at Mary’s desk. Thanks for listening. I’ll talk to you tomorrow.
