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Revisiting The Federalist Society with Avery and McLaughlin

Michael Avery and Danielle McLaughlin, co-authors of The Federalist Society: How Conservatives Took the Law Back from Liberals (Vanderbilt University Press, 2013), talked with Vanderbilt UP’s acquiring editor Beth Kressel Itkin on September 26, 2018, about the outsized influence of the Federalist Society with respect to judicial nominations and the corresponding shaping of American jurisprudence.

The discussion was timed to coincide with current events relevant to the book, specifically, the Senate Judiciary hearings regarding Brett Kavanaugh’s nomination to replace Anthony Kennedy’s seat on the U.S. Supreme Court. What follows is a condensed and edited version of the conversation.

Q: What led you two to write The Federalist Society in the first place?

The Federalist Society cover

Michael: We could see that the Federalist Society had grown enormously in the years since it started in the early 1980s. They had a huge budget, many members and, during the Bush years in particular, were solidly entrenched in the White House and the Justice Department. They had been behind a number of cases that had gone to the Supreme Court. On the other hand, almost nobody had heard of them and just a few articles about them had been written. There was this powerful force trying to change American law and public policy, and people needed to know more about it.

My, how things have changed in terms of the public knowing about the Federalist Society. Would you have predicted the current makeup of the Supreme Court when the book came out five years ago?

Danielle: Understanding there was a chance that a Republican president might win in 2016, there was no doubt that the Federalist Society would be a guiding hand in judicial nominations. We have a number of members of the court in their late seventies and eighties. It was clear there were going to be vacancies.

Given the ability of a group like the Federalist Society to have such an outsized role in picking lifetime appointments, do you think term limits should be imposed on Supreme Court justices?

Michael: No, I think that would make it even more political than it is now.

Danielle: You’ve got to be very careful what you wish for regarding term limits. On the role of the Federalist Society in judicial selection, the Trump presidency has given the Federalist Society even more power, I think, than it had over the same process in prior Republican administrations. The group has a greater hand in judicial selection in the Trump administration because the President is leaning on them in a way that perhaps a President who was more enmeshed in politics and law, or someone who had a clearer set of principles, might not have.

Are there particular chapters of the book that you would recommend that you think speak to the current moment? I was particularly focusing on the chapter titled “The Jurisprudence of Personal Sexual Autonomy” given the public speculation regarding Judge Kavanaugh’s views on abortion rights and Roe v. Wade (1973).

Michael: I think that chapter is important for the reasons that you mentioned. If people want to get an overview, then the introduction and chapter one, which describes how the Federalist Society networks operate, are also very important.

Danielle: The interesting thing about Roe v. Wade is that it was very much an animating and coalescing legal decision for conservatives. Forty-five years later we are in a place where Roe v. Wade could be overturned by a conservative-majority Supreme Court. It is a testament to the Federalist Society members’ understanding that this would be a long road. Because they were railing against an ideology that was antithetical to their own, they understood that they had to fight, which is something that I think liberals have been a little lazy about.

Michael: Another interesting point is that all along the Federalist Society has complained that judges have too much power, that there is too much judge-made law, that we ought to rely on the legislature. That was one of their big arguments with respect to marriage equality. But right now in this moment, the conservatives themselves are relying heavily on the judiciary to make policy, and some of the most important changes in the American landscape have been brought about through conservative judicial decisions. Citizens United, which has radically affected how elections are financed, and which expanded corporate freedoms, is just one example.

So now, for Democrats, it seems there is a dilemma because the Federalist Society took decades to become what it is today. Should Democrats strive for a similar organization, or what might an effective counterbalance look like?

Danielle: There is one—the American Constitution Society—but they have not been as effective in, for example, counseling American presidents on Supreme Court nominations.

Why do you think that is?

Michael: Your question goes beyond our expertise. Not that we don’t have views on it; we do. I would say that the Democrats don’t have a coherent vision. The Federalist Society plays hardball; the Democrats are playing croquet.

It seems like the Federalist Society, as explained in your book, engages in two strategies. The first is to influence jurisprudence and the second is to help influence the composition of the courts. Which has helped them the most?

Michael: It’s both. One of the things that we did in our book was to show how the Federalist Society has really scanned the waterfront and identified issues and cases that its’ members could finance and then hired very competent lawyers to represent the clients involved in those cases. Federalist Society members’ strategy is multifaceted, including filing amicus briefs, hand picking cases, financing cases, writing law review articles, holding debates.

If you were to come out with a new edition of the book, what chapter or chapters would you add?

Michael: We would focus on the growth of the Federalist Society and its influence in the courts and in the federal government between 2013 and now, which has been huge. The group has doubled its budget. They have just expanded enormously. This expansion is the main thing that in my mind is important to focus on.

So you are saying their topical areas of concern remain the same, it’s just that they’ve gotten larger and even more influential?

Danielle: We would explain developments to the reader that have occurred over the past five years. There are some salient conversations going on within politics and across the nation that we would raise. One important example is President Trump’s border wall. The traditional conservative view of eminent domain, and one that the Federalist Society and its members have pushed for decades, is that the power to take private property should be as narrow as possible. However, we have not heard a peep from conservatives with respect to the wall—which would require using the government’s power to seize property on a scale not seen since the infrastructure projects of the New Deal in the 1930s.

So there is some shifting now in ideology?

Danielle: I wouldn’t characterize it as a shift in ideology. I see it as pragmatism and expediency on the part of Federalist Society members, which are interesting subjects to mine when you’re talking about a group that stands on principle.

Anything you would like to add before we close?

Danielle: I would add that the story is so important. Just look at the numbers. There are less than 100,000 members of the Federalist Society. By point of comparison, there are 400,000 members of the American Bar Association. The ABA is far more representative of the legal community than the Federalist Society, and when you think about the Federalist Society’s role in Supreme Court nominations and lower federal court appointments, you realize that there is an outsized amount of power in the hands of the few with respect to courts that make hugely important decisions, on facts, law, and the contours of the constitution and the rights recognized under it. 

Michael: We are looking at a period of prolonged struggle. For people who care about consumer’s rights, worker’s rights, racial justice, and women’s rights, among other issues, the Supreme Court is no longer going to be the court of last resort and won’t be that for quite some time. Instead, liberals will really need to up their game when it comes to influencing Congress as well as state and local government.

For more: Read an excerpt of The Federalist Society from Scribd, view more information about the book on our website, or visit the websites of Michael Avery and Danielle McLaughlin.