New Essay: "What is the Future of the Federalist Society?"

The launch of the Civitas Institute's new online journal.

The Civitas Institute as the University of Texas at Austin has launched a new online journal called Civitas Outlook. The initial slate includes essays by co-blogger Jon Adler, Richard Epstein, and others. My entry is titled What is the Future of the Federalist Society?

Here is an excerpt:

Over the past four decades, the Federalist Society (FedSoc) has climbed from an obscure organization to the apex of influence. What started as a group of students criticizing the liberal legal order has now become the embodiment of the prevailing conservative jurisprudence. The recent National Lawyers Convention provided an opportunity to toast the FedSoc's successes, and there is much to celebrate. But this moment also presents something of an inflection point. For nearly half a century, FedSoc has followed the same playbook under the same leadership: a debating society that does not take any position on legal issues. But Eugene Meyer, the society's stalwart and venerated President, plans to step down soon. As the leadership search continues, the conservative legal movement should take stock of what the future portends for FedSoc. . . .

Yet, there are headwinds. First, there is a long-simmering tension between social conservatives and the libertarian wings of the movement. For example, in the leadup to the landmark Dobbs decision, which overruled Roe v. Wade, FedSoc's national convention largely ignored the abortion issue. To this day, many social conservatives still feel slighted. Second, FedSoc has long favored a strong deregulatory focus, which was a priority of the Reagan Administration. However, the Trumpism of the Republican party seeks to use government power to promote conservative goals. Third, FedSoc has long favored the lowercase-c approach to conservatism: moderation and restraint. This jurisprudence was a natural choice when originalism and conservatism were minority viewpoints on the Supreme Court. But now, and for the foreseeable future, the roles have reversed. Judges with courage have more cache than those seeking passive restraint.

…

I have been a devoted member of FedSoc since my first year of law school in 2006. I deeply hope that FedSoc maintains its relevance and influence for another four decades. But I worry that the celebrated approach that worked to climb the sunrise side of the mountain may lead to its decline on the other side. What is that new approach? I do not know, and it should be, as is true to FedSoc's core, a matter of debate. However, maintaining the status quo is not sustainable.

I suspect this piece will stimulate some discussion and debate.

Comments

[apedad]

"This jurisprudence (i.e., lowercase-c approach to conservatism: moderation and restraint), was a natural choice when originalism and conservatism were minority viewpoints on the Supreme Court."

I LOVE THIS LINE!

It's easy when you're in the minority to sit back and whine all the time (like most of our conservative commenters).

Being in leadership position and actually steering the boat though?

It would be easy right now to write, "We'll see.....," but it's obvious there are going to very stormy political seas the next four years - and it will NOT be a good outcome for anyone - even and especially for the conservative leaders.

[Sarcastr0]

FedSoc has long favored the lowercase-c approach to conservatism: moderation and restraint. This jurisprudence was a natural choice when originalism and conservatism were minority viewpoints on the Supreme Court. But now, and for the foreseeable future, the roles have reversed.

Just openly outcome-oriented jurisprudence. Not sure if Blackman is shameless or just lacks any ability to see anything other than partisan struggles.

Why sponsor open debate when you can have slanted panels push an agenda? Why have a presence at Yale and Harvard versus getting right-wing cred by showily closing those chapters and then condemning those schools as having silenced you?
This is the same ends-justify-the-means logic as Blackman evinces here.

I do think things will get worse at FedSoc before they get better. And Blackman's ilk is a big part of why.

[Jett's Pop]

"showily closing those chapters"

The Yale and Harvard Law School Federalist Society chapters were closed? Can you please give us a cite?

[Sarcastr0]

I don't think you parsed what I said right. Those questions were not statements of fact.

[Swede425]

I eagerly look forward to their judicial recommendations!
I have every confidence that president Trump will continue to use their wise counsel when selecting future judges.

[Dr. Ed 2]

The FedSoc is going to have to expand into the Graduate and Professional schools. I tried to get a FedSoc chapter going at UMass Amherst, which has no law school but 6,000 graduate students, not all of whom are left wing and a LOT of whom (pre Janus) were not happy having to pay dues to the graduate employee union.

This was 15 years ago when few outside the legal world had even heard of the FedSoc and FedSoc wanted to stay with just law schools. That was then, this is now, and that policy decision really ought to be reconsidered as law is not the only profession where the values of the FedSoc are relevant.

Blackman wrote that he "[has] been a devoted member of FedSoc since my first year of law school in 2006" -- there are a lot of conservative and libertarian groups for undergrads but none for those pursuing graduate and professional degrees (e.g. MD, etc.)

And even though it has gone off the rails and become about little more than the money, CPAC was always mostly directed at undergrads.

The FedSoc already has student, lawyer, and faculty divisions which all seem to function well together notwithstanding the clear differences between them, it has experience dealing with graduate students (i.e. law students) and hence it is the ideal organization to expand into this leadership vacuum. And the reason for doing it is that the Fed Soc is now at the point where its agenda has advanced beyond the mere scope of lawyers and what is taught in law schools.

In other words, lawyers don't run everything (as much as they like to think that they do), and the "stealth impeachment" of Judge Newman (blogged below) serves as an example. It is the medical profession, not legal, that is being used in an attempt to remove her and the last Republican President with a JD was Gerry Ford. Trump has a business degree, Bush 43 has a MBA.

To remain on the national stage, to be effective on the national stage, the FedSoc needs to be in the graduate and professional schools, and not just the law schools.

On a campus where there is a law school this is no major stretch because the FedSoc has long allowed non-law graduate students to be members (I was), but in universities without law schools, it is going to need to establish chapters.

[apedad]

Trump has a business degree?!?

[SRG2]

I thought he had a PhD from Trump U*

*Trump U is an accredited* academic institution

* Accreditation is from the Trump Accrediting Organization*

* Trump Accrediting Organization is not affiliated with Trump U*

* Trump U will sue anyone who asserts otherwise.

[Brett Bellmore]

Sure, a Bachelor of Science in economics, from Wharton. Why so shocked? Graduated with so so grades, some people claim a "gentlemen's C", but we have no proof either way.

[apedad]

Economics isn't business.

I have BA in Economics from U. Maryland but I definitely don't go around saying I have a business degree.

[Dr. Ed 2]

From the Warton School of Business?!?

[Bob from Ohio]

The Wharton School is the business school of the University of Pennsylvania so saying you have a "business degree" seems ok.

Was economics housed in the business college at Maryland?

[David Nieporent]

Trump has an undergraduate degree only, a B.S. in Economics. That is not a "business degree."

[NvEric]

A degree means little. Application, i.e. actual work, is what counts. Same goes with "qualifications" which are meaningless without doing actual work ... successfully.

Resumes are words on a page. Likewise, job interviews are usually pointless exercises in the stupidity of the interviewers if they seek answers not found in real-time abilities.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Then maybe you had Julian Simon, one of Economic History's geniuses. I corresponded with him shortly before his death, when he was working for the Knights of Columbus !!!!

[Voize of Reazon]

He has a Wharton B.S in Economics with a concentration in Real Estate.

He used to claim that he graduated at the top of his class, but he doesn't want you to fact check him on that. Michael Cohen wrote letters to his high schools and to Fordham and Wharton, and to the College Board who run the SAT, threatening legal action if they leaked his academic record.

We also have a second-hand quote from William T. Kelley, one of Trump's economics profs at Wharton, who according to his friend lawyer Frank DiPrima often said "Donald Trump was the dumbest goddamn student I ever had."

And some controversy about how he got into college in the first place. His niece Mary Trump wrote in her tell-all book that DJT paid one Joe Shapiro to take the SAT for him.

[Dr. Ed 2]

"Michael Cohen wrote letters to his high schools and to Fordham and Wharton, and to the College Board who run the SAT, threatening legal action if they leaked his academic record."

That's FERPA-protected material and a perfectly legitimate reminder.

"We also have a second-hand quote from William T. Kelley, one of Trump's economics profs at Wharton, who according to his friend lawyer Frank DiPrima often said "Donald Trump was the dumbest goddamn student I ever had."

It's a FERPA violation for the professor to say that Trump was one of his students.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

What a stupid post because we have a gushing commendation of the excellence of Biden from his Syracuse professor ! And Biden is maybe the stupidest man to ever hold that office.

UNDERGRAD BIDEN
He had a "C" average overall for his four years, graduating with a class rank of 506 out of 688.

LAW SCHOOL BIDEN
he graduated 76th in a class of 85 students.

Remember the legal and logic maxim: You can't restrict comparisons when they show what you are defending is WRONG.
Any human being sees Biden is stupid and lazy as sht and Trump is neither
PS Kamala followed your strategy
23 Nobel Prize-winning economists call Harris’ economic plan ‘vastly superior’ to Trump’s

That noise you hear is me and my family and neighbors laughing at you. She blew through over $1.5 BILLION and you say her economics is the dog's asss.

[theobromophile]

FWIW, I was at a Fed Soc conference this year and met several non-lawyers there. They weren't even in the legal profession; they were scientists and such.

[David Nieporent]

The FedSoc is going to have to expand into the Graduate and Professional schools.

The FedSoc is not going to have to expand into graduate or professional schools, since graduate and professional schools have nothing whatsoever to do with the FedSoc's mission. It's not a social club.

[Dan Schiavetta]

“I suspect this piece will stimulate some discussion and debate.“

Not egotistical at all.

[CommentMonkey]

I think this is a deeply misguided view. What Blackman derides as "moderation and restraint" was a commitment to principle and a respect for the structural constitution. The Federalist Society's emphasis on originalism and respect for constitutional text wasn't regarded as "moderation" by its opponents. That it may seem moderate now is a function of the organization's success.

"Judges with courage have more cache than those seeking passive restraint." I haven't the first clue what this means. Best guess is it has something to do with "common good conservatism" and the view that, contra everything FedSoc has stood for from day one, conservative judges should subordinate respect for constitutional structure to the movement's policy goals du jour. No thanks.

If Blackman means to convert FedSoc into a vehicle for chasing "cache," the organization will quickly fade into irrelevance, and rightfully so. As for the idea that the organization must adapt and evolve to avoid the fate of Blackberry and Blockbuster Video, maybe there's something to that. But adaptation does not mean trading the organization's core mission for its opposite. Rather, it may be that adaptation in the near term will require FedSoc to address activist threats from the right - to resist activism masquerading as "judicial courage."

[David Nieporent]

"Judges with courage have more cache than those seeking passive restraint." I haven't the first clue what this means.

It means that Josh Blackman does not know how to spell the word "cachet."

[NvEric]

'However, maintaining the status quo is not sustainable.'

Here, here ! Much progress is required to meet the principles of what was started in the late 1700s. FedSoc should point to unencumbering law-bloat which is worse than no law at all. Realizing betterment of self applied to common principles and the knowledge that human nature evolves slowly, but it does evolve. If evolution is false, then screw civil society notions.

[Dr. Ed 2]

Lawfare may not be something that attorneys worry about, but it is the same problem that SLAPP suits once were, and I've got a pretty good idea what James Madison would have said about it.

[bernard11]

For nearly half a century, FedSoc has followed the same playbook under the same leadership: a debating society that does not take any position on legal issues.

This nonsense again?