Chicago Law’s Will Baude is one of the conservative legal scholars whose work tries to earnestly and creatively slap lipstick on theory pigs, which makes him much more interesting to read than many of his peers. He’s also willing to commit the occasional conservative apostasy when the rest of his camp drop their masks and reveal that the whole theoretical superstructure is just a convenient fig leaf for contemporary Republican party politics. The point is, Baude is not the sort of cynical ideologue that generally populates conservative academic ranks.
Which is why his recent blog post attempting to deflect the storm of bad press for the Federalist Society is so jarring, because to make any sense at all it must either be nakedly disingenuous or woefully naive — neither of which seem like Baude’s style.
This has led to claims that the Society is in fact a partisan organization because of its supposed role in picking judges, to calls that the organization disavow or denounce various things, and to arguments that members of the society have some moral culpability for what other members of the society do.
“Supposed role in picking judges.” This bit of handwaving refers to FedSoc’s Executive VP Leonard Leo and his unquestioned role as the primary arbiter of Donald Trump’s judicial nominations. Leo’s managed to appoint fully one-quarter of federal appellate judges in a relative blink of an eye — with the help of Mitch McConnell’s willingness to sacrifice the orderly administration of justice for years to create a daunting number of vacancies for Trump.
Similarly, I think it’s a mistake to expect the Federalist Society to take official positions beyond, perhaps, its relatively open-ended mission statement.
Right… because of its tax status. With a group already playing dangerously close to the line in taking advantage of 501c3 status, an official position would most definitely be a mistake.
I am a member of the Federalist Society, but I don’t see things this way and thought I’d try to explain why. As I see it, the Federalist Society is essentially a network that connects thousands of scholars, students, and lawyers. There is obviously some intellectual valence to that network — it is not a random network — but it’s usually a mistake to discuss the network as a collective noun.
It certainly is a network, but it’s a network designed for the purpose of stacking the judiciary and academia with conservative ideologues. The unabashed mission of the organization is to avoid another “Souter moment” by vetting and nurturing “right-minded” individuals for career advancement. Baude notes that he doesn’t see himself as a likely court appointee — which is true — but also irrelevant. Vetting includes finding people who don’t make the cut too. And it ignores that his career as a T14 academic is just as much a part of FedSoc’s mission as finding judges.
But the society doesn’t do anything. Individuals like Leonard Leo and Don McGahn do.
“United Airlines doesn’t fly to Houston, Captain Oveur does.” After repeatedly describing the organization as a network, he’s got to grapple with the question: for what purpose? A network is a little like a poker game — if you look around the network and can’t see how it’s serving its leadership, you’re the sucker. Facebook isn’t a network of elderly people sharing cat photos, it’s a data driven advertising engine.
Ultimately though, this is Baude’s real issue. He notably opposed the Supreme Court’s gutting of organized labor in Janus, arguing that compelling union members to contribute money is not compelled speech and he realizes the negative press around FedSoc affords him an opportunity to double down on his reasoning because unions are, in a very real sense, networks too.
Baude and Eugene Volokh argued at the time that “requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all.” In other words, just because an organization is speaking with someone’s money doesn’t mean that individual is talking. A better challenge to the reasoning of Abood and Janus would have been that protecting organized labor is a recognized governmental goal much as the social security system was in Lee and the efficient operation of that goal requires the orderly collection of dues regardless of a dissenter’s opinions. Instead we get a spicy libertarian hot take suggesting that unions are entities separate and apart from their members. It’s how GOP candidates always say they care about teachers, just not teacher unions as if those aren’t the same thing.
So when FedSoc lands in the news for hosting raving conspiracy theorists and folks generally saying stupid stuff and people start tying Baude to this circus just because he’s devoted the better part of his life to this organization, he’s got to find a way to say “nah, that’s not me.”
But that’s a cop out.
Leonard Leo using the organization’s Rolodex to fill federal court vacancies and letting Bill Barr toy with jailing seditionists is what FedSoc’s all about and if you offered aid and comfort in building that network, then you own it.
There are no tourists.
FedSoc is a They, not an It [Summary, Judgment]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.