Vice President Mike Pence speaks at a Federalist Society dinner in 2019.

AP

Backtalk

No, the Federalist Society Is Not an Advocacy Organization

Its members lean conservative and libertarian, but the society does not take political positions.

Theodore B. Olson is a partner at Gibson Dunn, a former U.S. solicitor general and a longtime member of the Federalist Society’s Board of Visitors.

Which of the following is an advocacy organization? One that lobbies Congress and state legislatures for legislative change, brings lawsuits and files amicus briefs? Or one that does none of these things and puts on programs designed to educate the public about legal questions, both controversial and simply interesting? Almost everyone would say the first. That is the American Bar Association. And almost no one would say the second. That is the Federalist Society.

I have been involved for a long time with both organizations. And I have had many disagreements with others involved in both groups over the years. But unlike the ABA, the Federalist Society has never taken a position as an organization on any contested legal question with which I deeply disagreed, let alone purported to speak for me on such a question. That’s because the Federalist Society, contrary to a recent article published in this magazine by Amanda Hollis-Brusky and Calvin TerBeek, takes no positions on contested legal questions. Never once in its 37-year history has the Federalist Society filed a lawsuit or brief in any litigation, and never once during that period has it passed any resolution advocating for or against any legal issue.

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To be sure, members of the Federalist Society tend to be conservative and libertarian—probably more so than the average American, though I am not entirely sure of that. They also tend to be sympathetic to a particular approach to interpreting the Constitution: originalism. But law school faculties are more monolithically liberal than Federalist Society members are conservative. Studies consistently show that somewhere between 75 and 85 percent of law professors are liberal, with only 15 percent or so even moderately conservative. This is even more true of top law schools. About 90 percent of the faculty at top schools who donate to candidates donate to liberal politicians—more than 95 percent at Yale, the top-ranked law school.

Much more than most law schools or bar associations, the Federalist Society goes out of its way to include people with different perspectives in its programs. According to a 2001 New York Times article, the society’s panels “scrupulously include liberals as well as conservatives from its own ranks.” A Washington Post Magazine story from this past January likewise observed that “true to its claim, the Federalist Society really had invited capable liberal advocates to try to rebut conservative perspectives,” including, for example, Neil Eggleston, White House counsel for President Barack Obama. Hollis-Brusky and TerBeek claim that “from 1982 to 2011, nearly every presenter, moderator and panelist at the society’s national conventions for students and lawyers—its two biggest annual events—would identify as right of center politically, not just ideologically.” But, by the Federalist Society’s count, at least 35 percent to 40 percent of the speakers, panelists and moderators at those events would not identify as right of center. Participants have included not only Elena Kagan (when she was still dean of Harvard Law School) and every other sitting Democratic appointee to the Supreme Court at some point in their careers, but also strong progressives like then-University of Pennsylvania professor Elizabeth Warren and former NAACP Legal Defense & Education Fund president Ted Shaw.

Hollis-Brusky and TerBeek also claim to have discovered that the Federalist Society is an advocacy organization based on a grant proposal that the society’s current president, Eugene Meyer, sent to a foundation in 1984. But 35 years of evenhanded programming, coupled with the Society’s consistent refusal to take positions on legal questions, demolish this suggestion.

Taking a step back, the idea, as Hollis-Brusky and TerBeek suggest, that federal judges should be ethically barred from attending or participating in Federalist Society programs, while continuing to participate in programs put on by bar associations or law schools, is not simply wrongheaded, it is profoundly misguided. Such a rule would not protect the judiciary’s reputation for impartiality; rather, it would have the opposite effect. It would forbid members of the federal judiciary from exposing themselves to views about the law outside the left-liberal thinking that continues to dominate much of the legal establishment. That is no more healthful for the judiciary than it is for members of any other major institution in our fractious, wonderful democracy.

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