The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Critics of the Federalist Society often speak of FedSoc as some sort of collective whole–an autonomous institution that shares monolithic views, and can speak with a single voice. This conception is false. The Federalist Society goes out of its way to not take positions on legal issues. This openness is an essential element for the Federalist Society's existence. Members are free to agree or disagree with each other, privately and publicly. If the Society took an official position–that is, picked sides in a debate–then one member would be right and one member would be wrong. That sort of dogmatism is inimical to the society. And there are many, many positions on which FedSoc members disagree.
Other organizations do take positions. For example, the ACLU will adopt a unified position on campaign finance reform. To reach this unified position, ACLU members will vigorously lobby and argue over precise contours of the issue. Eventually, some members will be alienated with whatever position is reached. And some members may choose to resign in protest. The Federalist Society avoids these difficulties by not taking a position. Members have the space to explore different positions, without violating some party line.
I think critics of the Federalist Society have such a difficult time understanding–or believing–this position, because most other organizations follow the ACLU's model. For these critics, organizations can prescribe what shall be orthodox. And deviating from that orthodoxy–even slightly–is apostasy, and grounds for cancellation. That sort of dynamic does not work for the Federalist Society.
Two recent incidents inspired this post. First, Steve Calabresi wrote an op-ed in the New York Times. He argued that President Trump's "fascist" tweet about postponing the election "is itself grounds for the president's immediate impeachment." Not an order postponing the election. A mere tweet, that the President has already walked back. There is no analysis to explain why a "fascist" tweet is a high crime or misdemeanor. It is simply stated as a conclusion. Maybe "abuse of power"? But the Newspaper of Record published this Op-Ed anyway.
Why? Because a prominent conservative criticized Trump. And not just any prominent conservative. Calabresi's biography line states that he is "a co-founder of the Federalist Society and a professor at Northwestern University's Pritzker School of Law." The casual reader would simply assume that the Federalist Society, as an organization, thinks that the President should be impeached for a tweet. For example, a headline in Forbes blared, "Cofounder Of Conservative Federalist Society Calls For President Trump To Be Impeached."
Calabresi should be proud of his work to establish the Federalist Society. But he must know that listing this fact in his byline creates the false impression that the Federalist Society is taking a position on the President's tweet. To help eliminate this misconception, Calabresi should omit this line from his biography. Being a tenured professor at Northwestern is sufficient to convey authority. There is no need to perpetuate the myth that FedSoc takes a position on this contentious issue.
The second incident concerns law schools. Over the past few months, many law school student organizations have joined statements on racial justice. But Federalist Society student chapters also do not take official positions on any matters. As a result, some chapters are coming under pressure. Campus Reform writes about one such situation at the University of Illinois. The local chapter refused to sign a statement issued by other student organizations.
My general policy is to not sign any statement I do not write–that applies to letters and briefs. When you put your name on something that someone else wrote, you have limited input. You can't request changes. There may be things you agree with, things you disagree with, and other things about which you are not certain. But putting your signature on a document requires you to accept everything, in toto.
I would encourage students to follow my general policy. Individual members should be free to issue whatever statement they wish. But the organization should not feel compelled to agree with demands of other organizations. And law schools, whether public or private, should not punish student organizations for failing to agree with any orthodoxies.