Clarence Thomas when being told about judicial ethics, probably. (Photo by Aude Guerrucci-Pool/Getty Images)
The Federalist Society is a political organization and the only people who won’t say that are willfully ignorant or actively lying. It is beyond obvious that the group does not merely exist to “debate” conservative and libertarian legal theories; it exists to advocate for specific political and legal outcomes in line with their policy agenda. The only reason FedSoc even maintains a facade of being a non-partisan organization is so the judges — and lawyers who want to be judges — can support the FedSoc, show up at their events, and maintain an intellectually dishonest stance that they’re just there for the lobster rolls.
An old letter from FedSoc President Eugene Meyer, unearthed in the papers of Robert Bork and reported on in Politico, show plainly that the FedSoc is, and always has been, a political organization with a specific policy agenda:
Federalist Society documents that one of us recently unearthed, however, make this position untenable going forward. The documents, made public here for the first time, show that the society not only has held explicit ideological goals since its infancy in the early 1980s, but sought to apply those ideological goals to legal policy and political issues through the group’s roundtables, symposia and conferences…
But the newly unearthed documents—a 1984 grant proposal and cover letter, written by Meyer on the Federalist Society’s behalf and now housed in the late Judge Robert Bork’s papers at the Library of Congress—provide evidence that the Federalist Society, in contravention of what the new Code states, in fact “advocates for specific outcomes on legal or political issues.” This suggests that federal judges, by attending Federalist Society events, are transgressing the Code’s new guidelines. Given the importance of active federal judges to the Federalist Society’s long-term goal of reshaping the law, barring them from the society’s events could hamper its continued ability to exert the political influence it has impressively built over decades…
The Federalist Society promised the prospective donor that the Lawyers Division would have a “dual purpose.” First, to “an even greater extent than the activities of the student and faculty divisions,” the new division would “educat[e] lawyers on legal developments with ideological connotations and how to deal with them.” The second purpose was “the formation of groups of conservative lawyers in the major centers for the practice of law, who feel comfortable believing in, and advocating, conservative positions.” The division, Meyer wrote, would mimic the style of workshops and seminars hosted by bar associations: “Unlike those events, however, the panels will also have ideological overtones, picking topics where the developments are especially good and should be encouraged, or especially bad and should be stopped.” The proposal offered examples of these workshops. Seattle might focus on the problems posed by “Environmental Regulation”; in New York, “Banking Regulation”; and in Houston, “Employment Discrimination (including the question of whether reverse discrimination is even constitutional).” The proposal also mentioned the Lawyers Division potentially “making its own recommendation for judicial appointments.”
Simply put, when the Federalist Society was describing its mission in private to a politically sympathetic donor, it let drop the group’s public-facing fiction that it is merely a debating society for the organic development of ideas.
Acting like the Federalist Society tries to hide the ball here is actually giving them too much credit. The FedSoc’s secret isn’t that it is subtle, it’s that most people don’t understand what it does. They’re basically like leopards, an apex predator that most people will never see. Right now they’re up in a tree, eating the remains of our judicial system, while people on the ground react to Donald Trump like he’s the Chupacabra.
You didn’t need a 1984 grant application to tell you that.
Which is also why it won’t matter. Conservatives have long since stopped pretending that they are restrained by ethics in pursuit of their supremacist ideology. They want to deny equal rights to blacks, gays, and women. They know that in order to accomplish that, they have to reinterpret the Constitution along its original lines which protected the rights of wealthy whites and no one else. They are close to total victory. That victory is being achieved by getting an army of conservatives jurists to be picked directly by the Federalist Society based on their level of indoctrination and willingness to abandon settled precedent in favor of the FedSoc’s agenda. They don’t give a damn about judicial ethics. If they did, Clarence Thomas and Brett Kavanaugh wouldn’t have jobs from which they can never be fired.
The FedSoc will shrug off this memo like Cersei Lannister shrugged off Robert Baratheon’s last will and testament.
The only guiding ideology of the Federalist Society is winning — which is why they win.
Eleventh Circuit Court of Appeals Judge William Pryor is speaking at a FedSoc event this Thursday. He was on the shortlist to replace both Merrick Garland and Anthony Kennedy, and while he is a fire-breathing conservative asshole, some have worried if he’s fully committed to the FedSoc’s agenda. You think he’d risk pissing these people off by not speaking at their events? Please. If he wants to be on the Supreme Court one day, these are the people he has to impress. And he knows it. And I know it. And FedSoc knows it. And anybody who is paying attention yet claims to not know it is full of crap.
The Federalist Society Says It’s Not an Advocacy Organization. These Documents Show Otherwise. [Politico]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.