The Misguided Case Against the Federalist Society

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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