|Legal status||501(c)(3) nonprofit|
|Purpose||"To promote the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."|
|Eugene B. Meyer|
Executive Vice President
(FYE September 2015)
The Federalist Society for Law and Public Policy Studies, most frequently called the Federalist Society, is an organization of conservatives and libertarians seeking reform of the current Law of the United States in accordance with what the organization says is a textualist or originalist interpretation of the U.S. Constitution. Founded in 1982, it is one of the nation's most influential legal organizations.
The organization plays a central role in networking and mentoring young conservative lawyers. According to Amanda Hollis-Brusky, the author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, the Federalist Society "has evolved into the de facto gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents." According to William & Mary Law School professor Neil Devins and Ohio State University professor Lawrence Baum, the administrations of Ronald Reagan and George W. Bush "aimed to nominate conservative judges, and membership in the Federalist Society was a proxy for adherence to conservative ideology."
The society is a membership organization that features a student division, a lawyers division, and a faculty division. The society currently has chapters at more than 200 United States law schools and claims a membership exceeding 10,000 law students. The lawyers division comprises more than 60,000 practicing attorneys (organized as "lawyers chapters" and "practice groups" within the division) in eighty cities. Its headquarters are in Washington, D.C. Through speaking events, lectures, and other activities, the society provides a forum for legal experts of opposing views to interact with members of the legal profession, the judiciary, law students, and academics.
The society began at Yale Law School, Harvard Law School, and the University of Chicago Law School in 1982 as a student organization that challenged what its founding members perceived as the orthodox American liberal ideology found in most law schools. The society was started by a group of some of the most prominent conservatives in the country, including Attorney General Edwin Meese, Solicitor General and Reagan Supreme Court nominee Robert Bork, Indiana congressman David M. McIntosh, Lee Liberman Otis, Energy Secretary and Michigan senator Spencer Abraham, and Steven Calabresi. Its membership has since included Supreme Court justices Antonin Scalia, John G. Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch. The society asserts that it "is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."
The society looks to Federalist Paper Number 78 for an articulation of the virtue of judicial restraint, as written by Alexander Hamilton: "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature... The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."
Its logo is a silhouette of former president and constitution author, James Madison, who co-wrote The Federalist Papers. Commissioner Paul S. Atkins of the U.S. Securities and Exchange Commission considered society members "the heirs of James Madison's legacy" in a speech he gave in January 2008 to its lawyers chapter in Dallas, Texas. Madison is generally credited as the father of the constitution and became the fourth president of the United States.
The society's name is said to have been based on the eighteenth-century Federalist Party; however, James Madison associated with Thomas Jefferson and the Democratic-Republican Party in opposition to Federalist Party policies borne from a loose interpretation of the Commerce Clause. The society's views are more closely associated with the general meaning of Federalism (particularly the New Federalism) and the content of the Federalist Papers than with the later Federalist Party.
The society holds a national lawyers convention each year in Washington, D.C. It is one of the highest profile conservative legal events of the year. Speakers have included former ACLU head Nadine Strossen, business executive and 2016 Republican presidential candidate Carly Fiorina, former BB&T chairman John Allison, former Attorney General Michael Mukasey, and U.S. Senator Mike Lee.
Members of the society helped to encourage President George W. Bush’s decision to terminate a nearly half-century-old practice of rating qualifications for office for judicial nominees by the American Bar Association. Since the administration of President Dwight D. Eisenhower, the American Bar Association provided the service to presidents of both parties and the nation by vetting the qualifications of those under consideration for lifetime appointment to the federal judiciary. The society alleged that the bar association showed a liberal bias in its recommendations. Examples given included that while former Supreme Court clerks nominated to the Court of Appeals by Democrats had an average rating of slightly below "well qualified", similar Republican nominees were rated on average as only "qualified/well qualified." In addition the bar association gave Ronald Reagan's judicial nominees Richard Posner and Frank H. Easterbrook its lowest possible ratings of "qualified/not qualified", and Judges Posner and Easterbrook have gone on to become the two most highly cited judges in the federal appellate judiciary.
In The Federalist Society: How Conservatives Took the Law Back from Liberals by Michael Avery and Danielle McLaughlin, the authors write that every federal judge appointed by both President George H.W. Bush and President George W. Bush was either a member, or was approved by members of the society. Avery and McLaughlin write that the society is primarily a "group of intellectuals."
Critics say the organization favors judicial activism, in particular on social issues. Many members of the Federalist Society favor overturning Roe v. Wade, the Supreme Court ruling that permits abortion. The organization tends to favor judges who take conservative stances on abortion rights and other social issues. Members of the Federalist Society have presented oral arguments in every single abortion case that has been before the Supreme Court since 1992.[page needed] The Federalist Society shares strong ties with political advocacy groups within the Christian family values movement.[page needed]
According to the authors of Building Coalitions, Making Policy: The Politics of the Clinton, Bush, and Obama Presidencies (2012), "Federalist Society members declaim the notion that they are united around a particular philosophy," although many members have been associated with textualist or originalist methods of constitutional interpretation. Judicial restraint tends to align with conservative views on abortion and LGBT rights, while "Critics point out that conservatives are typically not so intent on following 'original meaning' in areas such as affirmative action, executive powers, free speech and federalism."
The Federalist Society opposes regulation of private property and private businesses, and has argued that specific regulations must be enacted by legislatures rather than courts or executives that interpret existing statutes and powers.[page needed]
The ideas of the Federalist Society were "at the intellectual heart" of King v. Burwell, which challenged the constitutionality of the Affordable Care Act, with members of the group playing a "mostly behind-the-scenes part in King — and in many of the most significant conservative legal victories of the last 30 years." In her book on the history of the Federalist Society, political scientist Amanda Hollis-Brusky writes that the Federalist Society "invested in the litigation efforts against the ACA well before the Act was signed into law—before there was even anything concrete to litigate against."
Members of the Federalist Society have argued that courts should not take race into account when making decisions.[page needed] For example, members of the group have argued that civil rights cases involving racially discriminatory policies should not consider race, but rather the individuals involved.[page needed] Federalist Society members were extensively involved with the Parents Involved in Community Schools v. Seattle School District No. 1 ruling where the Supreme Court struck down voluntary desegration plans in several jurisdictions.[page needed] The authors of The Federalist Society: How Conservatives Took the Law Back from Liberals write that "Conservatives believe, however, that it is not appropriate for the government to promote racial balance. The essence of the conservative position is that there is no legal difference between considering race or gender for purposes of exclusion and considering race or gender for purposes of inclusion. They argue that both are harmful and make racial problems worse. On the other hand, many civil rights advocates believe that because our history has been one of the systematic exclusion of racial minorities and women from social, political, and economic institutions and from positions of power and influence, the conservative view leads to the continuation of exclusion and retards society’s ability to move toward inclusion."[page needed]
The Federalist Society has forcefully argued against regulations on guns. Members hold that the Second Amendment protects the rights of individuals to guns, as opposed to being a collective right to arms. At the time of the Federalist Society's creation and since the 19th century, the Supreme Court and academics had held a more restrictive view of gun rights. The Federalist Society was influential in shifting legal views on gun rights, culminating in the Supreme Court ruling District of Columbia v. Heller which struck down gun regulations in the District of Columbia that required guns to be kept "unloaded and disassembled or bound by a trigger lock".
The Federalist Society has been influential in the Trump administration, hand-selecting Supreme Court Justice Neil Gorsuch and recruiting a slate of conservative judges to fill vacancies throughout the federal judiciary. The society helped to assemble the list of 21 people from which Donald Trump said he would choose a nominee to replace Antonin Scalia on the U.S. Supreme Court. Nine of the 21 individuals spoke at the society's annual convention in late November 2016, while nearly all of the others were in attendance. Federalist Society members have generally chosen not to criticize President Donald Trump and Politico described the Federalist Society membership as "elite, conservative lawyers who have generally chosen to give Trump a pass on his breaches of long-cherished legal norms and traditions in exchange for the gift of Supreme Court Justice Neil Gorsuch." Federalist Society executive vice president Leonard Leo said: "What President Trump has done with judicial selection and appointments is probably at the very center of his legacy, and may well be his greatest accomplishments thus far."
In May 2018, the Federalist Society hosted a phone call entitled "examining the legality of the Mueller Investigation", where one of the featured speakers has argued that Special Counsel Robert Mueller's investigation into Russian interference in the 2016 election is unconstitutional.
Notable members of the society have included:
- Supreme Court Chief Justice John Roberts[note 1]
- Former United States Supreme Court Justice Antonin Scalia (who served as the original faculty advisor to the organization)
- Supreme Court Justice Samuel Alito
- Supreme Court Justice Clarence Thomas
- Supreme Court Justice Neil Gorsuch
- Supreme Court Justice Brett Kavanaugh
- United States Court of Appeals Judge (D.C. Cir.) Thomas Griffith
- Alex Kozinski, former Chief Judge of the United States Court of Appeals for the Ninth Circuit
- United States Court of Appeals Judge (5th Cir.) Edith Brown Clement
- Former United States Court of Appeals Judge (D.C. Cir.) Robert Bork
- Former United States Attorney General Edwin Meese
- Former U.S. Attorney General John Ashcroft
- Former United States Assistant Attorney General Peter Keisler, a co-founder of the Federalist Society
- Former United States Solicitor General Theodore Olson
- Former United States Solicitor General Paul Clement
- President Pro Tempore of the U.S. Senate Orrin Hatch
- Senator Ted Cruz, Republican Senator of Texas
- Senator Todd Young, Republican Senator of Indiana
- Former U.S. Senator and Secretary of Energy Spencer Abraham
- Former United States Ambassador to the European Union C. Boyden Gray
- Former United States Secretary of the Interior Gale Norton
- Michael Chertoff, former United States Secretary of Homeland Security
- Former general counsel of the Office of Management and Budget and of the Department of Homeland Security Philip Perry
- Former Texas State Representative and Dallas lawyer Bill Keffer
- Former President of Baylor University and former independent counsel Kenneth Starr
- Former Columbia Law School Dean David Schizer
- Professor Richard Epstein of the New York University School of Law
- Professor Randy Barnett of Georgetown University Law Center
- Roger Pilon, Director of Constitutional Studies at the Cato Institute
- Labor, employment, and regulation law attorney Eugene Scalia (son of Justice Antonin Scalia)
- Roberts was reported to have been a member of the society, but Roberts's membership status was never definitively established. Deputy White House press secretary Dana Perino said Roberts "has no recollection of ever being a member." Following the report, the Washington Post located the Federalist Society Lawyers Division Leadership Directory, 1997–1998, which listed Roberts as a member of the Washington chapter steering committee; however, membership in the society is not a necessary condition for being listed in its leadership directory.
- Alliance for Justice
- American Constitution Society
- Brennan Center for Justice
- National Lawyers Guild
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- Schwartz, Peter (March 9, 2015). "Wolf at the Door: Antonin Scalia and the Legal Conservative Movement". Huffington Post. Retrieved 10 March 2015.
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- "Charity Rating". Charity Navigator. Also see "Quickview data". GuideStar.
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- Hollis-Brusky, Amanda (2015). Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. Oxford University Press. p. 213. ISBN 9780199385539.
- Devins, Neal; Baum, Lawrence (2016). "Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court". The Supreme Court Review. 2016 (1): 301–365. doi:10.1086/691096. ISSN 0081-9557.
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- Choi, Stephen; Gulati, Mitu (2003). "Who Would Win a Tournament of Judges (Draft)". Boalt Working Papers in Public Law. University of California (19): 96. Retrieved 2006-08-20.
- Fontana, David (June 11, 2013). "A Small Right-Wing Conspiracy: The Federalist Society". The Daily Beast. Retrieved 10 March 2015.
- Zengerle, Jason (August 22, 2018). "How the Trump Administration Is Remaking the Courts". New York Times. Retrieved 11 October 2018.
- Avery, Michael; McLaughlin, Danielle (2013). The Federalist Society: How Conservatives Took the Law Back from Liberals. Vanderbilt University Press. ISBN 9780826518774.
- Levin, Martin; DiSalvo, Daniel; Shapiro, Martin (April 13, 2012). Building Coalitions, Making Policy: The Politics of the Clinton, Bush, and Obama Presidencies. JHU Press. p. 225. ISBN 9781421405094.
- "Behind Supreme Court's Obamacare Case, A Secretive Society's Hidden Hand — ProPublica". ProPublica. Nina Martin. 2015-03-03. Retrieved 2018-10-10.
- "PR firm helped Whelan stoke half-baked Kavanaugh alibi". POLITICO. Retrieved 2018-09-21.
- Gerstein, Josh (November 16, 2017). "Gorsuch takes victory lap at Federalist dinner". Politico. Retrieved 24 May 2018.
- "George Conway's Tweets Raise West Wing Eyebrows". POLITICO Magazine. Retrieved 2018-05-24.
- Wolf, Richard (November 20, 2016). "Supreme Court wannabes audition in Scalia's shadow". USA Today. Retrieved 1 December 2016.
- Barnes, Robert (November 26, 2016). "Supreme Court vacancy dominates talk at national lawyers convention". The Washington Post. Retrieved 1 December 2016.
- Quinn, Melissa (May 21, 2018). "Trump's stealth victory: Reshaping the courts". Washington Examiner. Retrieved 24 May 2018.
- Lane, Charles (July 21, 2005). "Federalist Affiliation Misstated". The Washington Post. Retrieved 2007-08-25.
- Lane, Charles (July 25, 2005). "Roberts Listed in Federalist Society '97–98 Directory". The Washington Post. Retrieved 2007-08-25.
- DeParle, Jason (2005-08-01). "Debating the Subtle Sway of the Federalist Society". The New York Times. Retrieved 2008-05-11.
- "Hon. Neil Gorsuch". The Federalist Society.
- Grayer, Annie (August 20, 2018). "Brett Kavanaugh was concerned with his Federalist Society membership in 2001, emails show". CNN. Retrieved October 11, 2018.
- Baker, Peter (July 9, 2018). "A Conservative Court Push Decades in the Making, With Effects for Decades to Come". Retrieved October 11, 2018.
- Sarat, Austin (2013). Studies in Law, Politics, and Society, Volume 61. Emerald Group Publishing. p. 139. ISBN 9781781906200.
- Carter, Terry (September 2001). "The In Crowd". ABA Journal. 87: 52.
- "Who Is Edith Brown Clement?". ABC News. July 19, 2005. Retrieved 9 March 2015.
- Landay, Jerry (March 2000). "The Federalist Society". Washington Monthly. Archived from the original on 21 February 2015. Retrieved 9 March 2015.
- Levine, Art (March 2007). "Dick Cheney's Dangerous Son-in-Law". Washington Monthly. Archived from the original on 18 July 2014. Retrieved 9 March 2015.
- "William R. "Bill" Keffer" (PDF). lrl.state.tx.us. Retrieved September 26, 2013.
- Riehl, Jonathan (2007). The Federalist Society and Movement Conservatism: How a Fractious Coalition on the Right is Changing Constitutional Law and the Way We Talk and Think about it. The University of North Carolina at Chapel Hill. p. 141. ISBN 9780549128793.
- Hollis-Brusky, Amanda (March 5, 2015). "The Federalist Society to Fox News to the Supreme Court: The real story behind the conservative war on Obamacare". Salon. Retrieved 9 March 2015.
- Volokh, Eugene (2001-06-03). "Our Flaw? We're Just Not Liberals". Washington Post. Retrieved 2008-04-09.
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- Teles, Steven M. (2008). The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton University Press. ISBN 0-691-12208-3.
- List of chapters from the official website