The Federalist Society claims it's just a debating club

Now it risks becoming one.

A one sentence explanation of the Federalist Society vs. Trump might be this. An ideology welded to a spoils machine is fighting for its life against a spoils machine welded to a spoils machine. Like most one sentence explanations, understanding it requires many more sentences of unpacking. These don’t represent original thoughts so much as a mindmeld between the research of Amanda Hollis-Brusky and the past Twitter trolling of Scott Shapiro. Except for any mistakes, which are mine and mine alone.

The political economy of the Federalist Society is poorly understood, but very important to modern American politics. For decades, the Federalist Society has shaped conservative legal discourse, providing the Republican party with a way to vet judges and political appointees for appropriate conservative values. Its then head, Leonard Leo, effectively took charge of recommending judges in the first Trump administration.

Now that’s changing. Two days ago, Trump expressed his disappointment in the Federalist Society for recommending unreliable judges, and denounced Leo as a “sleazebag” who “probably hates America.” Stephen Miller has said that the Federalist Society won’t be making judicial nominations any more.

The immediate reason for all this is that Trump is mad that judges he appointed are ruling against him. He would like reliable hacks like Emil Bove, who can be trusted to do what the boss wants, whatever the law says. But there are bigger structural reasons for the break-up. To understand them, you need to really understand what the Federalist Society is.

The draft first chapter of Amanda Hollis-Brusky’s book on the Federalist Society, Ideas with Consequences, is extremely helpful. She describes the Federalist Society as “an interconnected network of experts with policy relevant knowledge who share certain beliefs and work to actively transmit and translate those beliefs into policy.” In contrast to scientists, whose beliefs rest on causal claims, the Federalist Society’s experts work with beliefs that are “strategic and instrumental rather than sincere and objectively grounded.” At the same time, they work within a legal system that places a emphasizes giving reasons for decisions.

Unlike legislators who simply vote according to their policy preferences, judges and Justices are required to issue written opinions explaining, supporting, and defending their decisions in the language of the law. In order to persuade an audience of similarly educated and trained lawyers and politicians that their decisions are legitimate, these opinions must situate the given decision within a line of established precedent – i.e., within an accepted constitutional framework – or, alternatively, they must provide a convincing argument for why that framework should either be ignored, altered, or reconstructed entirely … Thus, the importance of the persuasive function of the court is heightened in cases where the Supreme Court is altering or reconstructing existing constitutional frames; cases where doctrinal distance is greatest.

In plain language, the Federalist Society is an ideological machine for taking conservative ideas, kicking the tyres to make sure they’ll do what they’re supposed to, and justifying them in ways that make sense for lawyers. This is especially important for justifying constitutional decisions, where conservatives on the Supreme Court needs external support for shifting the binding interpretation of the Constitution from one set of claims to another.

The Federalist Society is also a community that combines cheering section for conservative ideas and corrective for judges that might be starting to drift off course.

the Federalist Society elite is able to act as an effective “judicial audience” … vocalizing their approval and disapproval of the decisions or the legal reasoning of fellow network members on and off the Supreme Court. … Baum writes in Judges and Their Audiences, people are not “interdependent solely because they want to get concrete things from each other. Rather, people’s identities, their conceptions of themselves, rest fundamentally on their relations with each other. And the need for others to validate people’s self-conceptions… continues throughout life” … even a Supreme Court Justice who has reached the pinnacle of his or her career cares about and would have incentive to seek approval from people whom he or she respects and with whom he or she is personally and politically connected.

In concrete terms, when a distinguished Federalist Society Member like Georgetown University’s Randy Barnett comes up with a constitutional theory that strikes most of his colleagues as ridiculous, he will have an enthusiastic cheering squad. Federalist Society colleagues like Eugene Volokh will chime in to tell the New York Times:

What Randy has done is provide an intellectual and legal framework for explaining why [Obamacare] is not just unpopular, but also unconstitutional. You can accept or not that framework, but it is a framework that is out there that is being taken seriously in part because it was proposed by a serious guy.

Brusky’s arguments provide an academic framework for understanding why the Federalist Society is a machine for generating Serious Guy energy. In Barnett’s case, that energy was nearly sufficient to push the Supreme Court into striking down Obamacare.

There is a second important aspect to the Federalist Society, which cannot be separated from the first. It is a machine for dividing the spoils. As Brusky puts it in more academic terms, the Federalist Society plays an important role in “actively and consciously credentialing and placing its members into positions of political power.”

This works as follows. If you are a politically ambitious young conservative lawyer wannabe (or politically ambitious and somewhat ideologically flexible), you join the Federalist Society. This gets you into meetings with people who are likely to be extremely useful for your career, including not just conservative professors, but judges too. If you are good at what you do and you are at a strong law school, you will have excellent prospects of getting a clerkship with a judge who shares your ideology. That, in turn, increases your chances of getting a nice position at a big law firm, or in government, or eventually even becoming a judge yourself. The Federalist Society provides network, opportunities, and a way for conservatives to identify and help each other.

It is probably obvious that I am not a fan of the Federalist Society, but this combination of ideological apparatus and spoils machine is not unique to it, or for that matter profoundly problematic. Indeed, it is quite close to Daniel Schlozman and Sam Rosenfeld’s working understanding of a successful political party. Any party that wants to achieve something needs both an ideological program and some means for distributing the goods among a winning coalition. Parties that have just the one or the other are either doomed or useless, and great party politicians, such as Abraham Lincoln, are adept at distributing material benefits to prevent cracks emerging between different groups who interpret the ideology differently. There are such implicit divisions between different groups within the Federalist Society, and I expect (though I don’t know of proof for this) that distributing the shared benefits of clerkships and plum positions has helped prevent those cracks from widening into fissures.

This all worked very well for quite a long time. Republicans needed some means to ensure that judges were ideologically certified and didn’t go rogue on them. Judges needed plausible legal theories to justify constitutional changes. Young hungry lawyers required clerkships. And as the merry-go-round gathered speed, law schools suddenly discovered that they needed conservative professors who could write recommendations to ensure that their graduates got clerkships with conservative judges. Indeed, Leonard Leo, who no longer heads the Federalist Society, but has control of a $1.6 billion trust, seemed well positioned to build and extend the model further.

Now, the contradictions are emerging quickly. Over time, the Republican party has changed, in ways that have accelerated dramatically under Donald Trump. The kinds of values that lawyers espouse - consistent reason giving, respect for precedent (in the observance or the hypocritically justified breach), and clever justification are not the values of Donald Trump. They’re antithetical to his style of politics, which depends on inconsistency, radical unwillingness to be bound by his own or others’ past actions, and verbal incoherence as a kind of gonzo performance art.

More generally, elected Republicans, including Trump but not just him, are much less patient than they used to be with legal frameworks that constraint them as well as their opponents. The slow, patient construction of a 6-3 Supreme Court, and its associated body of jurisprudence seems irrelevant to a party that sees no value in expertise, or need to defer to those who respect it. Finally, conservative legal ideology is not just a mask for material interests. Those who have spent a lifetime building it into a consistent ideology will often be committed to that ideology, even when it leads them to politically awkward conclusions.

The Trump administration is not shaped around an alternative new legal ideology. It’s ideologically incoherent, except regarding the things that it hates. Increasingly, it’s being built around a new racket where business interests and political interests become indistinguishable from each other.

The difficult question for the Federalist Society, then, is how that affects its racket - its effective monopoly on the nomination of conservative judges, the recommendation of sound lawyers, and all the good things that flow therefrom. The Federalist Society unconvincingly claims that it is simply an intellectual network which doesn’t get involved in policy, instead maintaining a “focus on fostering debate and discussion of important legal topics.” Without influence on judge appointments, and with slowly withering influence on clerkships, it might be forced to become what it says it is, and no more. The fate of its left-liberal counterpart, the toothless American Constitution Society, which exercises little sway over appointments and is just a debating club, beckons.

And that might easily happen! If you do not care about constructing long term legal frameworks, as the Trump coalition seemingly doesn’t care, there is nothing to stop you from turning judicial appointments into just one more subsystem of grift, which supports and is supported by the other forms of grift you are engaged in. Once this gets properly established, it can generate its own set of self-confirming expectations. Call this the Gambetta equilibrium:*

doing bad things together serves two useful purposes for criminal and quasi-criminal enterprises. First - it enables you to identify and screen out the people who have real moral qualms before you have to rely on them to cooperate in whatever quasi-legal thing it is that you want them to do. Second, it gives you and them a stake in mutually assured silence. There is a third thing too: it plausibly corrupts people, rewiring their moral codes so that things that they might once have identified as wrong come to seem like ordinary practice. Most people don’t want to seem evil to themselves; equally, most people don’t want to feel that they are suckers or losers. If you can get people to feel as though they are a sucker or loser if they don’t participate, you’re half-way towards pulling them in.

Gambetta provides other examples of how corrupt systems of trust work in his book, Codes of the Underworld. Why is it that Italian professors not only are often incompetent at research, but (according to his account) boast loudly about their incompetence? Gambetta says that they are behaving perfectly rationally. Their incompetence and their boasts are costly signals that they can be relied on. When someone who is in their academic clan asks them to find a job for their nephew or research assistant, they won’t ask indelicate questions about whether the person is intelligent and qualified to carry out good academic work. They’ll just find a job for the idiot, on the assumption that the favor will be returned in due course. Boasting about incompetence is signaling that you can be trusted to be corrupt.

In the judicial version of that equilibrium, the Trump administration doesn’t want to appoint lawyers who are actually interested in the law, or whose work might impress other lawyers, as judges. Instead, it wants to appoint lawyers who have demonstrated their willingness to do shady things for the team, or who boast like some Italian professors about how little they care about doing their job properly. That, in turn generates different expectations for politically ambitious young conservative lawyers. They won’t be rewarded for subtle constitutional arguments that impress their peers, but for their demonstrated willingness to be a depraved legal hack. To get ahead, they will need to make nice with other hacks. And if there are lots of other depraved hacks, who seem to be doing well, the perceived moral costs of depraved hackdom fall dramatically. It is just what people need to do to get ahead. After a decade or two, the American legal system becomes Rhode Island writ large, a one party system where political and judicial corruption reinforce each other.

Furthermore, if this process begins to get going there is a real likelihood that the Federalist Society will effectively fall apart, as (a) some members rush to embrace the new normal so that they can get their hands on the goodies, and (b) implicit ideological fractures begin to widen. The immediate reason why Trump is unhappy is that three trade judges (two conservative; one a Trump appointee) unanimously sided with a brief attacking Trump’s tariffs authored by Ilya Somin, a Federalist in good standing (and a scholar who I have real respect for). How long will real libertarians stick with a president who anathematizes trade and civil liberties? What about actual small government conservatives? Will the Federalist Society split, be co-opted, find some tacit accommodation or go never-Trump? I’d guess the last of these is by some distance the least likely, but that’s as far as I’d be willing to make predictions.

Equally, the Federalist Society has resources to defend itself. As matters stand, many conservative judges are deeply connected to it, in ways that they are not connected to the administration. It still has a cheering squadron for decisions that hew to conservative ideology, even if the cheers will likely be much more muted thanks to cross pressure from the administration. It is far better suited than Trumpism for a system in which precedent and the trappings of reasoned argument from text still matters. It is capable of collective action, if (a big if) it is able to reach some consensus decision on what it wants to do. Finally, court appointments obviously have to be approved by the Senate, where Republican senators like Mitch McConnell have put decades of effort into building a system that is rigged subtly rather than crudely.

I am not the kind of expert who can provide plausible predictions about whether the Federalist Society will prevail over the Trump administration, or vice-versa, or what terms they might meet if they find some compromise. My best guess - and it is just a guess - is that Emil Bove’s confirmation process will tell us a lot about what happens afterwards. But which side wins and which loses in the bigger contest will have important consequences for the kind of conservatism that prevails, and for the kind of America that we’re going to live in.

* I should note that Gambetta is making an argument about the direction of institutional incentives rather than a blanket condemnation of all academics. That is implied in his claim that the loud boasts are costly; there is a community who thinks differently, and cares about quality of reasoning. Similarly, we may expect that not all judges in a corrupt system will be necessarily corrupt.