Legal Docket: Influencing the Supreme Court

NICK EICHER, HOST: Well, what better way to mark Labor Day than to put in a good day’s labor? It’s Monday. Welcome to The World and Everything in It. Today is the 2nd of September, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Here’s a blast from the past:

CLINTON: The great story here for anybody willing to find it and write about it and explain it is this vast right-wing conspiracy that has been conspiring against my husband since the day he announced for president.

Conspiracies gonna conspire, for sure.

This was then-First Lady Hillary Clinton, 21 years ago, introducing into the public lexicon “vast right-wing conspiracy.” She was, of course, talking about conservative opposition to then-President Clinton, and the phrase has stuck, its application reaching well beyond the Clintons.

Which brings me to today’s subject: The Federalist Society.

EICHER: Yeah, The Federalist Society. 

That’s the organization that drew up a list of possible nominees for the Supreme Court and presented them to then–presidential candidate Donald Trump.

Now, this summer I read a book that detailed the political fight over Justice Brett Kavanaugh: Justice on Trial by Mollie Hemingway and Carrie Severino. 

In the book, I learned that Trump had leaned heavily on the advice of a staffer named Don McGahn. 

As it happens, McGahn was a Federalist Society guy when he was in law school. And it was McGahn who advised Trump on how to reassure conservatives who were skeptical about Trump’s judicial philosophy.

Let’s remember, the issue wasn’t theoretical. It was front-and-center at that time: Supreme Court Justice Antonin Scalia had died. Senate Republicans were vowing to block President Obama’s choice to replace him. And the Republican candidates were headed into another prime-time debate. 

Turns out, Trump took McGahn’s advice about specific judges to nominate, and he mentioned those judges during the debate.

Hemingway and Severino wrote, and I’ll quote here: “Trump’s response to Scalia’s death that evening and in the weeks to come helped propel him to a victory that nobody thought he could win.”

So basically, it set up a referendum: Vote Republican and Scalia’s replacement will be more Scalia-like. Vote Democrat and the replacement will be more Ruth Bader Ginsberg-like.

But if Hemingway and Severino are right, the Federalist Society may well have turned an election, and turned it against Hillary Clinton. 

So does that make the group the critical conspirator of the vast right-wing conspiracy?

REICHARD: Well, it can certainly sound that way. Now, seriously, there’s no doubt The Federalist Society is influential, and I can certainly understand people conflating something that’s highly influential with something conspiratorial. 

And just to add to the intrigue here, I guess I have to disclose that if it’s a conspiracy, well, I was once part of it. For a year of law school, I joined The Federalist Society. I was drawn to clearly stated principles, and felt that my law school didn’t treat all judicial philosophies equally. But as a tuition-paying, Ramen-noodle-eating student, I didn’t renew the next year. 

I digress. My purpose today is to demystify The Federalist Society. Rather than draw on my own limited experience, I got in touch with two people who know better.

MEYER: Eugene Meyer, I’m the president of the Federalist Society.

AVERY: My name is Michael Avery. I’m a professor emeritus at Suffolk Law School in Boston.

Avery co-wrote a book called The Federalist Society: How Conservatives Took the Law Back from Liberals.  

I asked Avery how The Federalist Society get started in the first place. It began in 1982…

AVERY: As an organization of law students at elite law schools. Very, very conservative law students who felt that their schools were dominated by liberal professors and liberal ideas, and they were seeking to develop an organization and a channel for conservative ideas.They’ve been extraordinarily effective.

That effectiveness comes in part from a clear statement of purpose. Here’s how the group’s president puts it.

MEYER: Our statement of purpose says the state exists to preserve freedom. The separation of powers is central to our Constitution. And it’s emphatically the province and duty of the judiciary to say what the law is, not what it ought to be.  And the idea is to get these ideas heard and discussed and understood to get the principles that underlie the US Constitution, which has been the most successful governmental tool in human history, I think, for protecting a free society, having those principles thoroughly understood.

… preserving freedom, separation of powers, and the role of the judiciary… 

Spreading those ideas has been job one for The Federalist Society. It’s done that by establishing chapters in 200 law schools, 80 metropolitan lawyers’ chapters, 15 nationwide groups, along with hundreds of events each year where free discussion and debate take place.

And some very bright minds helped get it all started.

MEYER: Justice Scalia was certainly a very involved in helping us over the years and spoke a great deal to us. Justice Thomas. Those would certainly be two I would think of…

Other legal luminaries were right there at the start, too: among them lawyers who would rise to positions of influence in the law. Some would become law professors at elite institutions, others would serve in government, still others would argue before the Supreme Court. But lest you think it’s a monolith devoted to enforcing group-think, you’d best think again.

MEYER: We have a wide range of views within the organization. We’re interested in debating and discussing ideas. And you know, we have people from fairly strong traditionalists and religious conservatives to people who are very strong libertarians to all kinds of things in between.

One of the lawyers instrumental in The Federalist Society’s early days was Ted Olson. He’d go on to make the winning argument at the Supreme Court that led to same-sex marriage.

Federalist Society critic Avery agrees that the organization has some intellectual diversity.

AVERY: I’m a person with progressive views myself.  I respect the Federalist Society for their effectiveness. That’s why I wrote a book about them.

… a sort of grudging respect, because, to Avery’s way of thinking, progressives just haven’t been as effective as The Federalist Society has been for libertarians and conservatives. 

And he says that as a past president of the National Lawyers Guild, an organization of progressive lawyers and law students.

AVERY: And we’ve been effective at a number of things, but not in infiltrating the corridors of power.

Now, that’s a debatable point for many, I realize. 

“Corridors of power” include academics, law schools where young minds are influenced, and certainly celebrity culture that spreads progressive ideas like wildfire. 

That’s a kind of power all by itself.

But Avery is thinking more about the current power of the White House, the Department of Justice, and the appointments to federal judgeships.

AVERY: And even when Democrats have succeeded in capturing the White House, both with Bill Clinton and with Barack Obama, uh, they have not been effective in putting progressive liberal thinkers in large numbers on the federal bench.

And why is that?  

One reason may be truly open debate, with the free flow of ideas articulated and defended.

Federalist Society events do that with articulate conservatives. But that’s not all they have.

MEYER: And they will also be people who would probably disagree with most of our members and very much more on the left of the American political spectrum. We think debate and discussion is a great way to learn more … to understand better and listen to the people who one doesn’t agree with. Because at the end of the day, when you do that, you educate yourself and you educate your audience.

…(laughs) it does seem a little out of fashion right now…

So, clearly stated principles, frequent debates, including people who disagree in events. Sounds like a reasonably attainable set of goals. 

That there isn’t a strong corollary on the progressive side of things raises the question: Why? 

Avery points out a problem with progressive big donors, who put strings on their money.

AVERY: When conservative philanthropists give money to political or legal organizations, they give it to them in unrestricted funds. So the organization can do whatever it wants with the money. Conservatives give money in unrestricted funds and liberals like Soros or the Ford Foundation or the Rockefeller Foundation, uh, they always give restricted funds with all sorts of, you know, limitations on how you can use the money. 

Conservative philanthropists understand the need for institution building, which is, you know, that’s what a success story the Federalist Society is. They’ve built this whole conservative institution. Liberal philanthropists don’t understand that at all….they believe in individual projects, and projects that they hope are going to be successful in one or two or three years.

Not just that, Meyer adds…

MEYER: I think they have another problem, which is there are quite a few organizations on the left already, so they have more, they may have more numbers, but they have more internal competition.

And perhaps that explains why the Federalist Society’s budget of more than $26 million per year dwarfs that of the several progressive groups like the one Avery mentioned, the National Lawyers Guild. 

The proof of the pudding is in the eating, as they say.

AVERY: Let’s put it this way. When the Federalist Society started, they said, if we want to change the law, we have to change the judges. And that’s the thing that they’ve been most successful at, uh, is getting their people appointed to judicial appointments. The idea that there are five members of the Federalist Society on the Supreme Court, uh, is extraordinary… . And that means that they’ll have control of the law, uh, at the highest level, you know, for the next generation.

So you can see perhaps now why expanding the size of the Supreme Court is a serious idea bouncing around among the field of Democrats running for president.

The New York Times asked all of them and posted the answers online … 

It’s a mixed bag, but that it’s even a live question is significant. The Supreme Court has been a court of nine since 1869. 

Any change would be nothing less than a radical departure.

AUDIO: I am open to that discussion. 

I’m open to any idea that can make sure a woman’s right of choice is protected. 

I am open to it. 

I’m open to it. 

I am open to that. 

I’m open. 

I believe we need to reform the Supreme Court, but it’s not just about the number of justices. 

Roosevelt tried that in the 1930s — didn’t work so well. 

Expanding the size of it, I think would require a national discussion. 

I don’t believe that expanding the size of the Supreme Court is the answer. 

I am not, I do not think expanding the Supreme Court makes sense. 

No.

No. 

No. 

Where does that stop?

Discussion for another time.

And that’s this week’s Legal Docket.

(AP Photo/Patrick Semansky, File) In this May 23, 2019 file photo, the U.S. Supreme Court building at dusk on Capitol Hill in Washington. 

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