What's Next For FedSoc?

Politico writes about the future of the Federalist Society

As the National Lawyers Convention kicks off, Politico Magazine published a profile about the Federalist Society. It focuses on a question that has occupied my mind for some time: what is the future for the Society?

When the Federalist Society gathers on Thursday at the Mayflower Hotel for its first national lawyers convention since the Supreme Court's historic 2021-22 term, one word is likely to stir up a surprising amount of debate, reaction and perhaps even pain.

The word is Dobbs.

After all, skepticism about the right to abortion was part of the impetus for the founding of the society, back in 1982. Popular outrage on the right over Roe v. Wade was what gave the upstart group founded by law students the sustained political support that propelled it to national prominence, connecting high-minded legal theorists to religious voters who had never heard the term originalism. And within the society's ranks, a belief that Roe was wrongly decided was the glue that held two of the group's major factions together: It provided common ground between conservative activists hungering to see their views enshrined in law and people who believed simply that unelected judges should leave major decisions to politicians.

Now, though, the Dobbs decision and the newfound legal power that delivered that victory are exposing those internal divisions and testing the group's commitment to its founding principles.

The article quotes me in a few spots, where I muse on the topic:

The first clue that the defeat of Roe, while a universally hoped-for goal, might also prove a mixed blessing for the conservative legal movement came at the 2021 Federalist Society convention.

One of the society's most prolific members, South Texas College of Law professor Josh Blackman, noticed that of the dozens of panel discussions — on topics including cancel culture and "social activism and corporate leadership" — none addressed the elephant in the room: the pending challenge to abortion rights, and how that could reshape both society and the conservative legal movement.

"You get your white whale and what do you do? What's the next thing?" said Blackman in an interview a few weeks ago while on his way to Federalist Society talks at three Boston-area law schools. "The answer is: I don't know."

I will keep my eyes and ears open throughout the convention to see how this question shakes out.

Comments

[Mr. Bumble]

Looks like Behar has once again been banned from VC.

[Frank Drackman]

guess this club's restricted, didn't know he was Jewish.

[Krayt]

“We just wanna lets states pass their own laws on abortion. Don’t worry about gay sex, contraception, or any of that other stuff!”

That happens.

“On to contraception and men putting their penises in other mens’ bottoms*!”

Is that a prediction? We will see.

* A marginally more civilized version of actual postings made around here by self-appointed Yahweh assistants out to help Him hurt his political enemies, as if an infinite creature needed assistence.

[Archibald Tuttle]

IMO it's time for FedSoc to shed its conservative reputation. FedSoc is a vital resource, and just about the only one that presents events taking balanced looks at legal issues. In these times, the country sorely needs an institution to provide that service.

If balance is FedSoc's most valuable property, it ought to strive for a balanced reputation. FedSoc should recruit more liberal attorneys repulsed by the ABA's bias.

FedSoc might also need better balance when proposing lists of qualified SCOTUS judges.

Maybe a name change too. Very few people understand the true origins of federalism and anti-federalism.

[Ed Grinberg]

Do you think, just maybe, its conservatism has something to do with its (indeed superior) quality?
Conversely, could it be that "ABA's bias" (which I certainly don't dispute) has something to do with (its idea of) "liberalism"?

[Archibald Tuttle]

That's a very good point, and probably correct. But we'll never get the liberals to listen if our approach is to insult them.

[JasonT20]

But we’ll never get the liberals to listen if our approach is to insult them.

Many conservatives and libertarians are regularly portraying liberals as hating America, authoritarian, and otherwise too dangerous to be allowed power. That many liberals have equally insulting opinions of Republicans (racist, greedy, not caring about the poor, etc.) doesn't mitigate this as being a problem. In fact, it is the largest source of our political dysfunction that this really is true of "both sides." It also doesn't make it less of a problem that each side's views do come from somewhere and aren't entirely made up. Each side feels justified in holding those opinions of the other, and it is unproductive to dig into which side is more justified, or if either are.

So, I agree. Any organization that has an ideological and/or partisan bent is only ever going to preach to the choir if it gives into that kind of thinking of its opponents. If the Federalist Society wants to be more than the networking tool for conservative and libertarian lawyers and legal scholars and aspiring judges that David Nieporent considers it to be below, then it will definitely have to make its case to moderates and liberals without insulting them.

[Brett Bellmore]

Sure, they have to make the case without being insulting. But...

The left are grand master class at taking organizations over from within. In the march through the institutions, they've attained grand master level proficiency at that.

The Federalist society needs to make the case without being insulting. They need to remain an organization that listens to both sides. But they must NOT lose sight of the fact that they are on one of those sides, and if they let people on the other side end up in any position of influence within their organization, sooner or later the left will eat them alive and wear them like a skin suit.

Because that's what the left does, it works wonderfully well for them, and they're not going to give up doing that.

[Rev. Arthur L. Kirkland]

" Do you think, just maybe, its conservatism has something to do with its (indeed superior) quality? "

Why, in your judgment, are America's strongest teaching research institutions operated by the liberal-libertarian mainstream, while most schools controlled by conservatives are fourth-tier (or unranked), nonsense-teaching, censorship-shackled yahoo factories?

Why have conservatives -- who complain bitterly about liberal bias at our best schools -- not developed first-rate conservative schools to address a claimed market failure and make plenty of profit?

Most people know the answers; conservatives don't like to talk about them.

[Frank Drackman]

I don't know "Reverend" Jerry, and how do you? seeing as how you topped out at Penn State?
Or maybe your current "Institution", https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx
and get your commutation package to Stuttering John Pronto, once he gets POTUS ass-perspirations he's gonna turn into Sleepy Joe circa 1994 when he was all about locking up Crack dealers (actually Sleepy still calls it "The Pot") and throwing away the key...

Frank

[Brett Bellmore]

"If balance is FedSoc’s most valuable property, it ought to strive for a balanced reputation. FedSoc should recruit more liberal attorneys repulsed by the ABA’s bias."

But then you run straight into Conquest's 2nd law: "Any organization not explicitly and constitutionally right-wing will sooner or later become left-wing."

It has accurately predicted the fall of one previously balanced institution after another.

[David Nieporent]

That makes no sense. The entire purpose of FedSoc is to allow for conservative and libertarian legal networking.

[JasonT20]

Maybe a name change too. Very few people understand the true origins of federalism and anti-federalism.

The Federalists were the ones that passed the Sedition Act of 1798, right? And it was the Federalists that wanted a stronger central government, with Hamilton famously pushing for a national bank. I really wonder if they chose "The Federalist Society" because it sounded better than "The Anti-Federalist Society."

[bernard11]

If balance is FedSoc’s most valuable property,

How is balance its most valuable property?

Isn't the most valuable property the network of right-wing lawyers, politicians, and judges it has built, which helps it place its members in desirable and maybe influential jobs?

[Navyhbs]

Perhaps the Federalist Society could shift its focus to fighting the administrative state. The bureaucracy combines legislative, executive, and judicial powers in an unconstitutional brew. It may be worth fighting that fight.

[The Last American Hero]

I’d think there is a lot for them to focus on, since we’ve had a century of massive expansion of power at the federal level. I wouldn’t worry about progress made on getting one lousy sc decision overturned. Maybe they can work on Wickard next.

[Archibald Tuttle]

Here's a dream. An alliance between FedSoc and the Institute for Justice. IJ could concentrate on court arguments, while FedSoc concentrated on public policy and lobbying on the same issues.

[Noscitur a sociis]

Since the Federalist Society doesn't engage in lobbying or take policy positions, I'm not sure this is a viable plan.

[The Margrave of Azilia]

Ah, the fine art of concern-trolling:

"At heart, the choice confronting Federalist Society members is clear even if their verdict is not: Be true to their vision of the limited role of the judicial system or succumb to a winner-take-all mindset, pursuing goals that may appeal to them but also strike their inner conscience as not all that different from those they accused the Roe court of harboring back in 1973."

Don't strike down the laws we like, no matter how dubious they may be, that would come at the cost of our newfound respect for you!

Who would deny that vagueness and ambiguities in the law should be filled in by applying principles of justice? The question is how quick you are to deem the law ambiguous. If the constitution uses a common-law term like "jury," you could say, "oh, well, who knows what a jury is, let's make it mean what we want," or you could say, "jury has an ascertainable common-law meaning which we can't rewrite."

But if it says "cruel," then faced with a novel punishment (i. e., "unusual," not known to the common law), you have to apply first principles to see what's cruel and what's not.

[The Margrave of Azilia]

Eg, death by *hanging* for murder isn’t *unusual,* since it’s not novel, it’s known to the common law. So the 8th Amendment allows it.

But death by electrocution or lethal injection isn’t known to the common law, so judges have no choice but to decide whether it’s cruel, and there’s going to be some "subjectivity" there.

[Brett Bellmore]

The problem there is that the 8th amendment is actually aimed at judges in the first place. So it's rather a matter of putting the fox officially in charge of the henhouse.

[LawTalkingGuy]

Dude. You keep saying this but you are absolutely wrong. It's not supported by the text at all. Your dumbass reading would mean that the executive branch, could have an explicit policy of systematically raping and torturing prisoners and the Eighth Amendment wouldn't prohibit that because a judge only imposed a prison term, and didn't say anything about rape or torture.

[Frank Drackman]

What part of "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." don't you understand? Apparently all of it, and the Founders weren't stupid, actually most better ed-jew-ma-cated than your average Ivy League student today, so when they banned cruel AND unusual punishments they were recognized that you could have "Cruel" punishments and "Unusual" punishments, just not both at the same time.
And Barry Hussein's "Signature" achievement, killing Obama Bin Laden only happened when that pussy KSM gave up OBL's courier's cell #. After that it was just getting the trigger pullers to the right spot.
And if the "20th Hijacker" had been given a little 220V treatment, maybe 9-11 wouldn't have happened. (I here he's been released to our buddies, Saudi Arabia)

Frank

Frank

[LawTalkingGuy]

I understand all of it. Textually it is clearly not a limitation on judges only. Legislatures can impose excessive bail requirements and fines and penalties. Legislatures can create cruel and unusual punishments. The Executive branch can also impose cruel and unusual punishments to the people in their custody.

The idea that punishments can be cruel as long as they’re widespread so not “unusual” is absolute nonsense that renders the amendment a nullity. That would allow the legislature to impose the death penalty for jaywalking.

[Brett Bellmore]

"Legislatures can create cruel and unusual punishments."

Legislatures can create cruel punishments. "Unusual"? I'd say the very fact they're legislatively specified rules that out.

The "cruel and unusual" language was meant to keep judges from getting creative about torturing people.

[Brett Bellmore]

Dude. It's talking about "punishment"; Unless the executive branch rapes and tortures prisoners pursuant to a sentence imposed by a judge, it's not a "punishment", it's 'just' a rape or torture. It has no legal sanction, it's a crime.

Just like if a judge orders you imprisoned, you're a prisoner. If your local police throw you in a cell and leave you there for a year on their own initiative, you're a kidnapping victim.

[LawTalkingGuy]

“Unless the executive branch rapes and tortures prisoners pursuant to a sentence imposed by a judge, it’s not a “punishment”, it’s ‘just’ a rape or torture. It has no legal sanction, it’s a crime.”

Assume the legislature authorized it.

[Brett Bellmore]

The legislature can't authorize "punishment" outside the context of a conviction before a judge. That would be a bill of attainder.

[tkamenick]

Show of hands - who else ignored what Blackman had to say and just went to read the Politco article?

[fafalone]

"and people who believed simply that unelected judges should leave major decisions to politicians."

It's hard to call a few fringe people a faction, let alone 'side'.

Or are we counting the disingenuous ones lying about why they're reaching some particular conclusion? Because I haven't seen much in the way of FedSoc members who aren't raging hypocrites about that.

[bernard11]

people who believed simply that unelected judges should leave major decisions to politicians.

Why should "unelected judges" leave major decisions to politicians? Nobody really thinks that. It's an excuse for criticizing decisions people don't like. ISTM that there are some decisions that should be made by judges.

Do conservatives think that decisions about gun control, for example, should be left to politicians?

[Dan Schiavetta]

They're all clustered downstairs in the lobby because there's no room service!!.

[The Margrave of Azilia]

The author of the *Politico* piece is simply concern-trolling – “I’ll be your friend if you uphold laws I like, but if you claim these laws are unconstitutional, I’ll have to conclude you’re unprincipled and I won’t be your friend after all.”

He seems to have written a biography of the first Justice Harlan, so he really ought to know better.

Though I’m sure there are plenty of Federalist Society members who are followers of the late Judge Bork, not just in the sense that he would have been better than Kennedy, but in the sense that they think his nihilistic positivism is completely awesome.

If those people want the respect of the Politico author they’re welcome to it.