Does the Federalist Society Matter?

By Joe Anderson
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Joe Anderson is a sophomore in the College studying Political Science and History. In addition to writing for the Roundtable, he is a member of the Penn Policy Consulting Group and Penn Debate Society, and a fellow at the Marks Family Writing Center.

Legal conservatives have a tool at their disposal that their liberal opponents don’t: the Federalist Society. The organization officially advocates “reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law” [1]. It advances its mission by sponsoring events attended by law professors, lawyers, students, and judges, with the ultimate goal of advancing “originalism” in the legal profession—a conservative approach to law which advocates interpreting the Constitution as written. But perhaps its most influential pursuit is filling federal benches with originalist judges by touting its most qualified members to Republican presidents. In fact, Leonard Leo, a former Vice President of the Federalist Society, was Trump’s legal right hand man—with Gorsuch, Kavanaugh, and Barrett all appearing on the organization’s exalted SCOTUS shortlist. And it’s not just the Supreme Court. Leo touted the Federalist Society’s key role in filling influential Federal Appellate Court seats, a third of which now have Trump-appointed judges [2]. Liberals just don’t have the same third-party kingmaker.

The closest alternative liberals have to the Federalist Society is the American Constitution Society, a center for law and policy which advocates for progressive courts. Funding for the ACS pales in comparison to the Federalist Society, raising $6.5 million in 2016 compared to the Federalist Society’s $26.7 million [3]. But funding for the centers themselves should be the least of liberals’ worries. The Federalist Society is supported by a vast network of nonprofits, charities, and interest groups which are fine-tuned to advance its members across the finish line and into federal judgeships. Leonard Leo—the consultant with extensive Federalist Society ties—alone raised over $250 million in mostly anonymous donations for countless conservative legal organizations [4]. Leo founded the BH Fund, America Engaged, and the Freedom and Opportunity Fund, all of which buttressed the Federalist Society’s Trump-era judicial picks, investing millions in ad blitzes, media coverage, and flattering op-ed columns to bolster public support for conservative nominees. The Federalist Society is just the head of the legal conservative octopus.

Guided by a milieu of strategists like Leo, legal theorists, and conservative PACs, the Federalist Society is a well-oiled machine with a sharp originalist focus. Evan Mandery, a professor at the John Jay College of Criminal Justice, pointed out that the mission of the American Constitution Society is more meandering and political than the Federalist Society, advocating ends like choice, racial justice, and union rights as opposed to the Federalist Society’s originalist means [3]. After all, the Federalist society is embroiled in a historical mission to recoup losses from the Warren and Burger courts, dealing blows to conservatives on abortion, religious establishment, and the death penalty. Originalism, as a philosophy that advocates for “impartial” interpretation rather than pursuing political goals, has a principled appeal that progressive legal minds have struggled—at least in practice—to compete with. Obama’s Supreme Court nominations, instead of deferring to outside groups, conducted the nomination process from inside the White House. He arrived at Sonia Sotomayor’s nomination through his own connections and advice from his White House legal counsel [5]. Judicial picks like Elena Kagan and Merrick Garland show his reliance on legal academia and the judicial cursus honorum—and not specialized legal bureaucracy in the mold of the Federalist Society—to shape federal benches. The “Obama paradigm” for judicial nominees included “relatively youthful and impeccably credentialed” lawyers, with the president flexing deep party ties to fill federal judicial vacancies [6].

While the left lacks its own Federalist Society, it has no shortage of competent, non-originalist judicial nominees to choose from. Obama’s selection of the dean of Harvard Law School to replace John Paul Stevens reveals just how much legal academia furnishes federal judgeships with left-of-center lawyers. But as a Congressional Research Service Report noted, presidents must juggle political considerations—how a Supreme Court pick is received by the public and positively impacts the president's image—in addition to a prospective nominee’s professional qualifications [7]. So what does the Federalist Society actually offer legal conservatives? While legal academia reliably sifts out qualified liberal judicial candidates, conservatives use the organization to compile their own pool of originalist-minded jurists. The Federalist Society’s network of pollsters and consultants actively seeking to change public opinion lacks a liberal counterpart. By virtue of fighting uphill battles—on abortion and Obamacare especially—legal conservatives need the Federalist Society’s support system to popularize what is otherwise fairly unpopular legal jargon. They would likely argue that the progressive legal movement already has PR allies in the mainstream media; however, when Roe v. Wade and the ACA are the legal status quo, and moderate judges merely seek to maintain legal precedence, the society’s snappy originalist slogan and formidable media arm reveal the self-awareness of legal conservatives—that they are the underdogs in a fight to reshape the federal courts. The Federalist Society expects public resistance because strict originalist interpretation would break from existing legal norms. Its resources and focus should not be seen as offering something that liberals lack—they merely reveal a sense of purpose and betrayal unique to the conservative legal movement. A liberal Federalist Society, complete with Leo’s vast financial networks, has failed to materialize because Democrats still trust their law school connections and presidential rolodexes to fill federal benches.

[1] “About Us.” The Federalist Society. https://fedsoc.org/about-us.
[2] Alder, Madison. “Senate Democrats Seek Records on Leonard Leo’s Trump Work.” (March 5, 2020). Bloomberg Law. https://news.bloomberglaw.com/us-law-week/senate-democrats- seek-records-on-leonard-leos-work-for-trump.
[3] Mandery, Evan. “Why There’s No Liberal Federalist Society.” (January 23, 2019). Politico Magazine. https://www.politico.com/magazine/story/2019/01/23/why-theres-no-liberal- federalist-society-224033/.
[4] Robert O’Harrow Jr. and Shawn Boberg. “A Conservative Activist’s Behind-the-Scenes Campaign to Remake the Nation’s Courts.” (May 21, 2019). The Washington Post. https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/?utm_term=.1d2008ed2d75. 
[5] Peter Baker and Adam Nagourney. “Sotomayor Pick a Product of Lessons From Past Battles.” (May 27, 2009). The New York Times. https://www.nytimes.com/2009/05/28/us/ politics/28select.html.
[6] Toobin, Jeffrey. “The Obama Brief.” (October 20, 2014). The New Yorker. https://www.newyorker.com/magazine/2014/10/27/obama-brief.
[7] McMillion, Barry. “Supreme Court Appointment Process: President’s Selection of a Nominee.” (February 22, 2021). Congressional Research Service. https://fas.org/sgp/crs/misc/R44235.pdf.

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