The Misguided Case Against the Federalist Society

The Committee on Codes of Conduct needs to rethink its draft opinion prohibiting membership by judges.

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Can federal judges be members of legal organizations and still uphold their duty to be impartial? That’s a question the Committee on Codes of Conduct for the U.S. Judicial Conference seeks to answer. 

The committee sets the ethical rules for judges and provides them with guidance documents. This is a useful enterprise and the committee generally exercises its duties well. Recently, however, it released a draft opinion stating that judicial canons preclude judges from being members of the Federalist Society and the American Constitution Society, but do not preclude them from membership in the American Bar Association. The committee’s rationale for its preliminary ruling is misguided, to say the least.

The Federalist Society is an organization of lawyers and legal scholars who debate and discuss constitutional law. It was started in the 1980s by law students dissatisfied that their professors taught law through a progressive lens with a preference for using courts to achieve social change. They wanted more meaningful dialogue over things like the separation of powers, federalism, and the proper constitutional role of the federal judiciary. The Federalist Society grew quickly and has become a highly successful national association.  Importantly, it never lobbies, never files briefs with courts, and never takes positions on cases or law. Instead, it pursues its ideas through debate and discussion, careful always to include all types of legal and judicial philosophies.

The American Constitution Society also seeks to bring lawyers and legal scholars together to discuss constitutional and legal issues. But it does so through a legal philosophy that is sympathetic to government power, that is less desirous of judicial federalism, and less formalistic in its interpretation of the constitution than the Federalist Society. The American Bar Association is the professional advocacy group for the nation’s lawyers. It seeks to “advocate for the profession,” broadly defined, and has as one of its primary goals to “eliminate bias and enhance diversity.” 

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  1. Avatar photo
    RandyMc

    "Are you, or have you ever been, a member of The Federalist Society?"

    It's a ridiculous draft opinion and I'm glad it's been brought to light. I'm a member of TFS and I'm not even an attorney. Besides the interesting discussions on the law, it qualifies for continuing education credits for my professional associations. Most events that are not specific to a particular new law or opinion, which is simply instructional, involves debate that includes multiple viewpoints. Yes, strict construction or original intent or meaning or textualism is represented but so are other interpretations. The ABA will never provide such a diverse forum.

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  2. Avatar photo
    Wait what?

    And coordination with the White House to develop lists of “acceptable” judges is not lobbying?

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    1. Sean

      It is partisan lobbying that brings with it the implication that the organization is a political organization, and that those affiliated with it are likely biased. Activities oriented toward the improvement of the law as a whole are encouraged. Do you believe that it constitutes political advocacy to assert that laws should be interpreted based on the original understanding of the text at the time the law was written, or that the role of the judge is to say what the law is rather than what he or she wishes it to be?

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      1. Avatar photo
        Wait what?

        It is just as much political advocacy to promulgate a theory of legal analysis that requires one to view the law through the lens of 18th century mysoginistic slave holders as it is to assert that the law was intended to grow and develop to serve the society we will become. There is bias in all legal interpretation. It just more honest to openly own it. So please let us not close our eyes and pretend that the Federalist Society is some polite non-partisan debate club. That only makes tha case easier for those who believe it’s true purpose is to perpetuate the power of wealthy white men.

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        1. Sean

          “It is just as much political advocacy to promulgate a theory of legal analysis that requires one to view the law through the lens of 18th century mysoginistic slave holders…”

          But if the law was written by 18th century sexist slave holders in order to solidify and perpetuate a system of sexism and racial discrimination, then that’s the law that was enacted or ratified, right? The solution is to change it via those methods laid out in the constitution.

          “…as it is to assert that the law was intended to grow and develop to serve the society we will become.”

          But nobody doubts that certain laws were written to perpetuate a system of sexism and racial discrimination. That’s not political advocacy. That’s a statement of historical fact. Is it also a statement of fact that these same people intended that the federal courts should have the authority to read these same laws as prohibiting the very racism and sexism in which the drafters/ratifiers believed so fervently? (And what are the criteria that must be present before the judiciary may exercise this authority?) If a Supreme Court justice says that the constitution is a living document, intended to grow and develop, should he or she be admonished for expressing a political point of view?

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  3. Sean

    According to an article by Theodore B. Olson, least 35 to 40 percent of the speakers, panelists and moderators at Federalist Society events held between 1982 and 2011 would not identify as right of center, and that this group includes all sitting Democratic appointees to the Supreme Court at some point in their careers. See https://www.politico.com/magazine/story/2019/09/07/no-the-federalist-society-is-not-an-advocacy-organization-228039

    With respect to treating organizations similarly, it appears that the activities of the ABA have not caused the general public to associate them with partisan legal goals, in part because those activities have been low-key or obscure compared with the much more high profile ones of the Federalist Society in helping to select federal judges seen as favoring outcomes desired by those on the right. If the result of this is that the Federalist Society is viewed by the pubic as a partisan organization while the ABA is not, must the two nevertheless be treated the same even though the evil to be prevented (loss of public’s trust in the integrity and independence of the judiciary) has not been generated by the ABA’s activities?

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  4. Jeffrey Gegler

    This makes me want to physically harm someone.

    Of course judges should look to avoid all appearances of impropriety. We already have a means to determine disqualifying biases for the Federal judiciary. It’s called confirmation hearings. These hearings come after another act which is one of the best indicators of possible bias, the President who appointed the judge. This was intended to be determined on a case by case basis in the Senate chamber; not by some sweeping fiat in a committee.

    This committee’s attempt is about chopping off the bits and neutering the Federalist Society, not any concern about “bias.”

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    1. Sean

      Your argument appears to suggest that no ethics charges can be made against a federal judge after the Senate confirmation hearings have concluded.

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      1. Jeffrey Gegler

        Not at all. We are discussing a blanket condemnation of anyone belonging to a legitimate group. Membership in this group almost always originated years (or decades) before judicial appointment. I’d still feel that an assumption of bias is spurious, but that is the Senate’s prerogative.

        That is completely different than an ACTUAL ethics complaint allegedly done by a sitting judge.

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  5. Avatar photo
    JohnF

    The author makes a good case for why the ABA shows as much bias (if not more) as the ACS and Federalist Society. However, that seems to me to be a good argument for prohibiting judges from being members of the ABA, rather than allowing them to be members of the other two organizations. If the intent of the entire exercise is to prevent the potential "appearance of bias," then perhaps it would be best if Judges avoided that potential by steering clear of all organizations that might represent a particular political point of view.

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    1. Sean

      “…perhaps it would be best if Judges avoided that potential by steering clear of all organizations that might represent a particular political point of view.”

      Is it a political point of view to believe that laws should be interpreted based on the original understanding of the text at the time the law was written?

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      1. Avatar photo
        JohnF

        Yes.

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        1. Sean

          I see. What makes it a political point of view? Is it a political point of view to say that the legislature should pass the laws and the judiciary should interpret them, since some people believe that the judiciary should not merely interpret but also modify or ignore laws if the judge believes that the original law passed by the legislature is no longer wise, and if the legislature is not willing to modify it in accordance with the judge’s wishes?

          What, then, is not a political point of view or a partisan activity? Does this include activities oriented toward the improvement of the law as a whole since there are anarchists who believe that we should do away with laws entirely?

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          1. Avatar photo
            JohnF

            I think your first paragraph sums it up fairly well. As the article says:

            "The Federalist Society ... was started in the 1980s by law students dissatisfied that their professors taught law through a progressive lens with a preference for using courts to achieve social change. They wanted more meaningful dialogue over things like the separation of powers, federalism, and the proper constitutional role of the federal judiciary."

            "The American Constitution Society also seeks to bring lawyers and legal scholars together to discuss constitutional and legal issues. But it does so through a legal philosophy that is sympathetic to government power, that is less desirous of judicial federalism, and less formalistic in its interpretation of the constitution than the Federalist Society. "

            One of these societies fits nicely with the definition of "Conservative". The other seems to be a reasonably good fit for "Progressive".

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  6. Avatar photo
    King of Swaziland

    And people wonder why there are conservatives who say the whole edifice needs to be burnt down and the ground salted.

    Publication of this draft opinion is clear and convincing evidence that every member of this committee who pushed this draft is, ipso facto, wholly unsuitable for the positions in which they find themselves on the committee.

    This is Soviet-Stalinist level BS.

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