A visit to a law school decades ago and a visit today would reveal strikingly different campuses. Before the 1980s, legal ideas generally considered conservative or libertarian were rare, and their defenders were regarded as borderline eccentric. Today, the environment is far more hospitable. Professors of conservative persuasion teach at the nation’s finest law schools, and market-based doctrines, such as law and economics, have created new fields of scholarship. Once, students who espoused conservative views in elite law school classes ran the risk of being marginalized. No longer.
Perhaps the biggest spur for this transformation has been the Federalist Society. Formed in 1982 in New Haven, it now boasts more than 40,000 members, hundreds of student chapters, and lawyer groups in dozens of cities. Four justices of the Supreme Court are considered friends of the organization—and a fifth is, at least intermittently, receptive to the group’s ideas. In a number of momentous cases, the Court has adopted arguments from the Federalist Society’s band of “citizen lawyers” to reshape broad swaths of constitutional thinking.
Amanda Hollis-Brusky, who teaches politics at Pomona College, here unpacks the strategy behind the Federalist Society’s success. For readers in search of a general history of the organization, this is not it: Steven Teles’s The Rise of the Conservative Legal Movement (2009) charts that story. But Hollis-Brusky picks up where Teles left off, describing the Federalist Society’s influence in four key jurisprudential areas: the Second Amendment, political speech, the commerce clause, and state sovereignty. She argues that leading members of the Federalist Society network have been instrumental in reshaping the law in these fields and have been particularly effective where the “doctrinal distance”—the gap between existing jurisprudence and that preferred by the organization—was greatest. The history of the commerce clause and the Second Amendment provide the best support for her contention.
For nearly a century and a half, the commerce clause was understood to convey a relatively limited grant of authority to the federal government, in keeping with the “enumerated powers” understanding of the Constitution. During the New Deal, this restriction came into obvious tension with Franklin Roosevelt’s more activist vision of national power, and battles with the Supreme Court marked much of his early presidency. Ultimately, Roosevelt won, and the legacy of this conflict persisted for decades as the Court refrained from striking down any law on commerce powers grounds.
Reflecting on this state of affairs at a 1994 Federalist Society event, Charles Cooper lamented that “it is no exaggeration to say today that there is almost no human commercial endeavor that cannot be brought within the Congress’s commerce powers as construed by the Supreme Court.” Federalist member Lynn Baker sardonically referred to Article 1, Section 8, Clause 3 as the “Hey, you-can-do-whatever-you-feel-like clause.” Both views were as accurate as they were despairing.
Against this background, the Court’s striking down of the Gun-Free School Zones Act on commerce grounds in United States v. Lopez (1995) came as something of a shock. Hollis-Brusky notes that the case “did not attract widespread Federalist Society network participation.” But if the Federalist Society was originally caught flatfooted, it deftly moved to make the most of the changed judicial climate: United States v. Morrison (2000), a commerce clause challenge to the Violence Against Women Act, was shepherded before the Court by leading Federalist members. These attorneys supplied crucial intellectual ammunition through amicus briefs, inviting the Court to double down on its previous decision. The result was the second resounding win in five years for proponents of more limited commerce powers. A constitutional restriction once written off as a dead letter was granted a renewed lease on life.
A similar tale could be told about the Second Amendment. In 1965, the future Seventh Circuit judge Robert Sprecher regretfully noted that “the rights of the individual citizen would be little different today if the Second Amendment did not exist.” The Supreme Court had interpreted the amendment into oblivion, deeming it to apply only to the federal government, not the states, and holding it to refer to a collective right to bear arms rather than an individual one. In the early 19th century, Justice Joseph Story had described the right to bear arms as “the palladium of the liberties of a republic,” but a century later, the same right was an artifact.
This troubled a coterie of Federalist attorneys and inspired a campaign to resurrect the neglected amendment. One of the ripest targets lay close to home, in the form of the sweepingly restrictive gun laws of the District of Columbia. The litigation team painstakingly designed and framed the case against the city and carefully groomed the plaintiffs suing to overturn the law. Fortuitously, a Federalist-friendly judge penned the appellate court opinion, and the predicate for a Supreme Court decision was laid.
The Court’s opinion in Heller v. District of Columbia (2008) was the product of these years of intellectual legwork and strategizing, and it did not disappoint: Writing for the majority, Justice Antonin Scalia in his historically minded opinion held that the Second Amendment protects an individual right to bear arms, and that Washington’s handgun ban infringed upon this constitutional right. The decision was a watershed. Two years later, the Court struck a similar ordinance in Chicago v. McDonald. In short succession, the Supreme Court had unequivocally supported a constitutional right that, decades earlier, few mainstream thinkers had believed still existed.
While Ideas with Consequences is well-researched and consistently argued, it is not without flaws. First, Hollis-Brusky repeatedly contends—really, it is her thesis—that the Federalist Society constitutes a “political epistemic network,” or PEN. While perhaps of interest to political scientists, such academic jargon comes across as needlessly convoluted and distracting. And reliance on this academic construct leads to tangled sentences such as this: “[The PEN] does not adequately account for the politically constructed dimensions of legal knowledge, legal authority, and the path-dependent nature of legal precedent.”
Second, although she largely avoids conspiratorial generalizations about the Federalist Society’s influence, Hollis-Brusky sometimes slips into the easy language of the organization’s critics. She claims, for instance, that Federalist Society lawyers helped “fabricate out of whole cloth” a Tenth Amendment law regarding state sovereignty. This performs the impressive feat of simultaneously giving too much credit to contemporary attorneys and too little to the Constitution’s Framers, who, to state the obvious, wrote the Tenth Amendment in the first place.
On balance, however, this is an excellent account of how an ambitious, and intellectually fearless, organ-iza-tion has proved to be remarkably talented at facilitating constitutional change. Acknowledging that fighting entrenched orthodoxy wouldn’t be easy, the Federalist Society’s founders joked that “Rome wasn’t burned in a day.” But even if the old legal orthodoxy isn’t quite in embers, its defenders dare not fiddle.
Andrew Buttaro is a judicial clerk for the Supreme Court of Texas.
