Four Theses on the Conservative Legal Movement

Originalism is the theory that the Federalist Society knows what it wants, and deserves to get it good and hard.

[Battista Angelo del Moro, “The Corrupt Judge.” Courtesy of the Met]

Obviously this post is occasioned by the terrible Supreme Court decision earlier this week. It is also motivated by the string of other terrible decisions over the last few years, and by a long established amateur interest in the topic of the conservative legal movement. What follows are better described as notes toward an argument than a fully developed set of ideas, but that’s all I’ve got right now.

The Conservative Legal Movement is Not Purely Political

There’s been a lot of scorn expressed on Bluesky and elsewhere at John Roberts’ apparent claim that Supreme Court justices are not “political actors.” If you read the original article, Roberts doesn’t quite say that, despite the AP’s spiced-up headline and somewhat misleading first line. What he actually says is:

“I think, at a very basic level, people think we’re making policy decisions, we’re saying we think this is how things should be, as opposed to what the law provides …I think they view us as purely political actors [my emphasis], which I don’t think is an accurate understanding of what we do.”

I haven’t been able to find a transcript of the original speech, and I imagine that Roberts didn’t elaborate further. I suspect that if he had so elaborated, he would have said very different things than what I am about to say below. Nonetheless, it is both true and important that the Supreme Court justices, and conservative legal scholars and movement activists are not purely political actors. They would be much less effective if they were. They have an ideology, originalism, which is clearly quite closely related to a set of policy priorities, but it doesn’t ineluctably lead on every possible occasion to the preferred policy outcomes.

If conservative legal thought were simple intellectual hackwork, it would be less legitimate, and hence much less suited to coalition building and getting results. Equally, treating it as a set of ideas floating far above politics in some empyrean of purely intellectual discourse would be even more wildly misleading [see further below]. The implication is that we can’t just treat the ideas as by-products of the politics. We have to understand how the ideas and the politics interact. And that leads us to the Federalist Society.

The Federalist Society is a Political Movement

If you want to understand how the conservative legal movement hangs together, you need to pay very close attention to the Federalist Society, a club of conservative lawyers. The Federalist Society is about ideas, as suggested by the title of Amanda Hollis-Brusky’s book on the organization, Ideas Have Consequences (a sardonic gloss on the title of a famous conservative book). It is also about distributing the spoils of patronage.

Hollis-Brusky - who has done the interviews - explains how the Federalist Society plays a central role in the promulgation of originalism, the doctrine that conservative justices have used to remake constitutional interpretation and jurisprudence in ways that are congenial to their ideology.

For example, as Federalist Society member Daniel Troy explained in our interview, “what the Federalist Society offers is an opportunity to interact with people who at least share your point of view about constitutional interpretation. . . people who have shared views about Originalism.” Similarly, Federalist Society member John Yoo emphasized in our interview that if he had to identify the single most important thing that the Federalist Society stood for, it would be “a commitment to Originalism.”

The Federalist Society does not simply develop originalist ideas and arguments . It also enforces the party line tacit combination of cheering section and ideological firing squad. Hollis-Brusky again:

Several conservative commentators when discussing Republican nominees John Paul Stevens, Harry Blackmun, Potter Stewart, David Souter, and even Anthony Kennedy in part attribute the leftward drift of these Justices to their desire for approval from the Washington, D.C., elite circles.

In helping to build a conservative and libertarian counter-elite around a shared belief in Originalism as the only valid mode of constitutional interpretation, the Federalist Society acts as a bulwark … holding members accountable for staying true to their principles. In the course of my interviews with key Federalist Society members, it became clear that they engage in this kind of feedback-loop with the Justices frequently—at Federalist Society conferences, at barbeques, through personal correspondence, and through scholarly publications.

As Federalist Society cofounder Steven Calabresi said in our interview, the growth of a conservative and libertarian counter-elite through the Federalist Society has “absolutely” helped keep Justices such as Scalia, Thomas, Roberts, and Alito in check: “I think it absolutely helps keep them in check. When one tries to think about what kinds of checks exist on officials as powerful as Supreme Court Justices I think the check of criticism by law schools, journalists, and conservative think tanks like the Federalist Society, criticism from those quarters is something that they notice. They may or may not be persuaded by it but I think they know it’s out there and I think it is something of a check on them.”

Hence, ideas are really important but they are ideas with a purpose, and an organizational structure behind them.

Still, if the Federalist Society were just about debating originalist ideas, it would be much less politically effective. The other, very important thing that the Federalist Society does is to distribute patronage. If you are a young aspiring lawyer and you want a political appointment in a Republican administration, or even more pertinently, a clerkship for a conservative judge, and all of the career benefits that flow from that, you really, really want to participate actively in the Federalist Society.

Thus, patronage politics (judges have great personal discretion in who they choose as clerks) plays a very important role in keeping the Federalist Society thriving and healthy. FedSoc’s liberal equivalent, the American Constitution Society, is relatively anemic, because it doesn’t have a similar stranglehold on who gets clerkships and who does not. It illustrates what FedSoc might look like if it were just about debate and nothing more.

In one sense then, you might think of the Federalist Society as a watered down version of what Tammany Hall might have looked like if it had taken all of the culturally offensive ceremonial nonsense about Grand Sachems and wigwams in deadly earnest. There is notably less riotous drinking, and far less overt corruption than in its nineteenth century equivalent, but FedSoc is in substantial part a machine for dispensing patronage to the right people. Just like nineteenth century Irish immigrants to New York, conservatives in law schools were denied access to the trough and had to organize themselves. They similarly came to dominate a system that once seemed to be rigged against them.

In another sense, the Federalist Society is indeed about ideas, but in a very different way to, say, an ordinary university department. Again, the Society’s mission is to ensure that ideas have consequences by shaping jurisprudence in specific ways. Debate happens only to the extent that it is compatible with this broader objective.

In conclusion then, you have to understand both aspects of the Federalist Society, and how they fit together, to see how it cements the conservative legal movement together. If it didn’t weld patronage politics to ideas, it would be much less attractive to young lawyers. If it didn’t weld ideas to patronage politics, it would be incapable of reshaping judicial discourse and constitutional politics around its conservative objectives.

The Conservative Legal Movement is Decadent

When it began, the conservative legal movement could see itself as an ideological vanguard. It was taking on a corrupt and complacent liberal legal academy that it saw, with some justification, as more interested in self-perpetuation than new ideas. Those days are long gone. Now, the conservative legal movement is the establishment, or at least a central element within it. Lawyers like Marty Lederman increasingly have to search for originalist justifications to achieve liberal ends [update: for qualifications see “Jon W” in comments].

Holding power - and seeking to maintain and extend it - have had predictably dismal consequences for ideas. Purportedly textualist Supreme Court justices come up with bizarre justifications that lack historical support, for decisions that they want to take. Historical constitutional interpretation becomes an exercise in cherry picking to justify new doctrines, rather than the sober moderating of judicial overreach that originalists purported to provide. Zealots of constraint, once they get into power, are keener to limit their opponents’ excesses than their own.

It is a problem when the concealing patina of ideas wears down. It is also a problem when patronage politics become so gross as to explode through the covering layer. The Roberts Court is not only presiding over the most spectacularly corrupt government in the history of US politics (itself a remarkable achievement). It is actively enabling it, both through its past jurisprudence and current decisions.

People rightly highlight decisions such as this week’s, as well as the grant of near complete immunity to presidents in the course of their official duties, the manipulation of the shadow docket to frustrate efforts to restrain the administration, and the efforts of DC circuit court justices to frustrate contempt proceedings against visibly contemptuous Trump officials. Other, less flashy lines of jurisprudence, such as the slow gutting of meaningful anti-corruption measures are likely to have equally pernicious consequences if control of the legislative and executive branches change hands.

I suspect that Roberts and his cronies do not like to think that they are associated with the more uncouth aspects of the political conservative movement. They are not only associated with it, but an active and vital element of the machine. It is increasingly difficult to maintain the pretense of separation. Once, like Burke in his early days, conservatives railed against official corruption. Now they are apologists for a regime whose decadent excesses resemble the more startling aspects of Marie Antoinette’s court.

Decadence opens up vulnerabilities.

To say that a system of pelf and ideology-laundering is in decay is not to say that it is in imminent danger of collapse. There is a great deal of ruin in a movement that has successfully seized power. Yet there are contradictions, weaknesses and fissures. Originalism is the theory that the Federalist Society knows what it wants, and deserves to get it good and hard. It’s now getting it good and hard, and some legal conservatives are reportedly unhappy.

Still, so long as the movement maintains its chokehold on patronage, it will be difficult to detach more than a few individuals. I’ve sometimes wondered what would happen to the Federalist Society if future reforms eliminated the power of individual judges to choose their own clerks, in favor of some form of panels or open competition. This would obviously discomfit many liberal and left leaning lawyers; they too have their own networks of benefit disbursal. But it is likely not nearly as essential a part of their organizing machinery.

It could be that the Federalist Society is sufficiently well established that it will continue to operate more or less as it does, or that it may integrate further into a conservative movement that is ever more closely organized around the division of spoils. It’s also possible - even likely - that it would lose a lot of the power that it has to attract and organize lawyers, unraveling the threads that weave patronage, cheerleading and disciplining lawyers into a single interconnected system of power. Perhaps in a few years we’ll have the opportunity to find out.