The Volokh Conspiracy

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What Happened When Mark Joseph Stern Interviewed Judge William Pryor

Slate's legal correspondent questioned the Chief Judge of the U.S. Court of Appeals for the Eleventh Circuit about the Federalist Society.


The Honorable William Pryor, Chief Judge of the U.S. Court of Appeals for the Eleventh Circuit, delivered an introductory address at this year's Federalist Society National Lawyers Convention. The speech was a hit with attendees, quoting and responding to common (mis)characterizations and criticisms of the Federalist Society from folks like Senator Sheldon Whitehouse and various progressive pundits.

One of the those quoted (some would say "mocked") in the speech was Slate's Mark Joseph Stern. A week after the speech, Stern decided to ask Judge Pryor for an interview. To Stern's surprise, Judge Pryor agreed on the spot, on the condition that Slate publish a complete transcript of the exchange. Stern agreed and Slate has published the exchange. Although the sub-hed of the story promises a "rare look inside the elusive and influential group," there is very little in the interview that is not well known to those familiar with FedSoc itself, as opposed to the villianous caricature commentators like Stern tend to draw.

As Judge Pryor explained, many claims about FedSoc reflect a misunderstanding of how the organization operates, and fail to distinguish between the actions of the Society and the actions of its members. From the interview:

I think sometimes the criticisms of the Federalist Society frankly are a reflection of a misunderstanding that really is rooted in a different way of thinking about how the world works. I think sometimes a lot of people on the left side of the political and philosophical spectrum view the world and social change and political action and other kinds of activity as being top-down, centrally planned. Command and control. That the way to make things happen is to do it in a top-down fashion. From the right or libertarian side of the spectrum, I think people see more of a bottom-up view of the world and how things happen. It's more Adam Smith and invisible hand. Friedrich von Hayek would call it spontaneous order.

The secret of the Federalist Society is that it's much more of a bottom-up organization. It has created this forum and this marketplace for ideas of debate and discussion. As a result of that, a lot of relationships are formed. Connections are made through a network. A lot of people who would not necessarily know each other end up doing other things together that are not what the Federalist Society does. Criticisms of individuals affiliated with the Federalist Society, and imputed to the Federalist Society itself, are a reflection of that different kind of worldview.

I quite agree with this assessment. As I have noted before (including in an anonymous dispatch from the first American Constitution Society conference in 2003), those viewing the Federalist Society form the outside do not understand how it can be so influential without someone planning and orchestrating things.

Stern raises the fact that some Federalist Society members were involved in the effort to prevent certification of the 2020 election results. But he could also have noted that other Federalist Society members founded Checks & Balances and called for Trump's impeachment. By the common account, the outlier actions of John Eastman are more illustrative of what FedSoc is about than the efforts of George Conway or Steven Calabresi.

Stern does note that Judge Pryor was "one of three judges who recently ended the disruptive reign of a special master over the criminal investigation into Donald Trump," but makes no mention of all the other significant decisions by other Federalist Society-associated judges who have ruled against Trump's interests, including many whom Trump appointed to the federal bench. Apparently that would disrupt the narrative.

One particular exchange addressed Stern's accusation that the Federalist Society serves as a "radicalization machine" for judges and clerks.

[STERN] It seems to me there's this cycle where students push further and further to the right to prove their ideological purity and attract the attention of judges who are looking for very specific kinds of work. And that is fueling what I called the radicalization machine. I think this cycle rewards and incentivizes the adoption of certain unyielding views among current law students, who then become clerks who may eventually become judges. So I'm curious for your view on why I'm wrong about that.

[Pryor] I picked the quote because it was over-the-top rhetoric and a caricature and I thought people would find that humorous. I think that perspective demeans both the students and the judges. First of all, the students—I think the students are adults and take ideas and legal philosophy seriously. I think really what the Federalist Society ends up doing is providing an organization where a lot of students who are really into nerdy debates about the law can gather and do that. Those kinds of students are attractive to judges. It used to be, I think, that a lot of law clerks were drawn from who made the best grades, who was on the Law Review, who was active in political campaigns. But legal philosophy and legal methodology really matter. And as that was taken more seriously, both law clerks and judges were more attracted to each other. I have no reason to think that the law students are changing their views and becoming more radical. I think we end up getting law clerks who are just much more interested in law as law. A lot of those students become members of the Federalist Society.

So you don't think there's an unfair advantage for conservative students at law schools today in terms of landing prestigious federal clerkships?

I didn't say that. Many judges, me included, are interested in having law clerks who in a very broad sense share a perspective about what the judicial role is. Judging is an objective enterprise. I think there are right and wrong answers to the cases that come before us. And the right or wrong answer depends on what the law actually is. Not everyone shares that perspective. I'm interested in law students as potential law clerks who do, in a general sense, share that perspective. My law clerks often have a variety of political views and support a variety of political perspectives and candidates. Some vote for Democrats. That's not what I care about. I care about their view of judging and how law works. Many different kinds of law clerks are attracted to the Federalist Society. It promotes an idea that law is an objective enterprise.

As the interview highlights, the Federalist Society serves as a useful foil for legal progressives seeking to blame unfavorable legal developments to sinister forces. Senator Whitehouse, in particular, likens the Society to a conspiracy.  Such characterizations are nothing new, and despite Judge Pryor's candid exchange with Stern, I doubt they are going away. The exchange may not have revealed too much about FedSoc, but it certainly was revealing about one of the Society's more persistent critics.