Jerry Landay
February 29, 2000

The Conservative Cabal That's Transforming American Law

The Federalist Society

This article reprinted with the permission of The Washington Monthly, where it first appeared in March, 2000.

ONE AFTERNOON IN NOVEMBER 1999, only a few weeks after leaving the Office of the Independent Counsel, Kenneth Starr relaxes happily in the lobby of Washington Mayflower Hotel. The hotel is hopping. Eight hundred lawyers have converged from all over the country for a convention--three days of celebrity gazing, brisk intellectual discourse, and hardheaded networking. It is the annual lawyers' meeting of the Federalist Society-a conservative legal fellowship to which Starr belongs-and he is in his element. The former special prosecutor is surrounded by a small group of gray-suited young "Feddies," who introduce themselves, conduct short interviews, whisper words of homage, or simply stare in awe. Starr beams--clearly enjoying this moment of adulation.

On friendly turf now, Starr may also be projecting feelings of gratitude. For as Joe Conason and Gene Lyons demonstrate in The Hunting of the President, Starr and the OIC benefited enormously from the efforts of a network of well-placed lawyers who, like Starr and other Republican luminaries, are members of, or linked to, the Federalist Society. Most of the self-styled "elves" who helped Linda Tripp's tapes find their way into Kenneth Starr's hands had links to the Society. And without the elves' handiwork plus the leaks, coaching, and sheer brainpower contributed by the extended Federalist network, Starr's investigation might never have gotten out of the blocks.

Tonight at the Mayflower you get a sense of just how powerful and far-reaching the Society is. There are stars from every comer of the Republican establishment in the room. From snippets of conversation, one concludes that they are joined not only at the ideological hip but by a collective hatred for President Clinton-perhaps more for standing in the way of their Revolution than for any moral or legal lapses. Members of Starr's old team like constitutional law advisor Ronald Rotunda (who counseled Starr that he could indict a sitting president) rub shoulders with old-timers from the Reagan administration--former Attorney General Edwin Meese, Solicitor General Charles Fried, and Civil Rights commissioner Linda Chavez -- and with former Bush White House Counsel C. Boyden Gray. The room bulges with partners from among the most powerful law firms in the land: New York's venerable Sullivan & Cromwell; Chicago's Kirkland & Ellis (Starr's outfit); Washington's own Wilmer, Cutler & Pickering (Gray's firm); and Los Angeles powerhouse Gibson, Dunn & Crutcher (its Washington office is home to Theodore Olson -- whose contributions to Starr's efforts are colorfully documented in the Conason and Lyons book).

And then there are the judges. No fewer than eight federal judges, most of whom are still active on the bench, will sit on panels or speak from the podium during this three-day affair. Their discussions range from the technical to the deeply ideological. Former federal judge Robert Bork comments on the "inertia" and "weariness" he has observed in American liberalism--themes drawn from his recent book, "Slouching Toward Gomorrah." And Supreme Court Justice Clarence Thomas attacks the American Bar Association for being too socially conscious -- advancing a slate of liberal positions "that go beyond representing the interests of lawyers as a profession."

The event has an intensely energetic feel. With the White House again within reach, the Mayflower is wrapped in a bubble of great expectations. And why not? The Society's mission is to advance a conservative agenda by moving the country's legal establishment to the right, and they are succeeding. Despite eight years of a Democratic administration, the impact of the Reagan Revolution continues to reverberate in the nation's courts. (See "The Gipper's Constitution," December 1999 Washington Monthly.) And now one of the legal theories the Federalists are pushing could make regulation by federal agencies unconstitutional in some cases and -- if carried to its logical extreme -- be the Federalists' crowning achievement in their unspoken campaign to change the face of law and politics in America.

Who are they?

With 25,000 members plus scores of close affiliates nationwide -- including Supreme Court justices Thomas and Antonin Scalia, Senate Judiciary Committee Chairman Orrin Hatch, and University of Chicago brainboxes Richard Epstein and Frank Easterbrook (also a federal appellate judge) -- the Federalist Society is quite simply the best-organized, best-funded, and most effective legal network operating in this country. Its rank-and-file includes conservative lawyers, law students, law professors, bureaucrats, activists, and judges. They meet at law schools and function rooms across the country to discuss and debate the finer points of legal theory and substance on panels that often include liberals--providing friction, stimulus, and the illusion of balance. What gets less attention, however, is that the Society is accomplishing in the courts what Republicans can't achieve politically. There is nothing like the Federalist Society on the left.

The Society's origins can be traced back to 1979 ---the year before Ronald Reagan's victory--when a legal scholar named Michael Horowitz published a tract on the public-interest law movement, exhorting conservatives to overturn a half-century of liberal dominance of the legal establishment. This could be done, he wrote, by indoctrinating or winning over succeeding generations of law students, lawyers, and judges. By definition, the campaign had to be rooted in the fertile ground of law schools. To Horowitz's good fortune, Reagan was elected in 1980, and his administration set to work filling the sails of the Federalist movement.

Horowitz's concept was taken up with relish by senior members of the new Administration. They operated on two tracks--designed to insure that the Reagan Revolution would well outlast the Reagan Presidency. The first, to reclaim the Federal courts from liberals, swept an array of conservative scholars and judges from law schools and state courts onto the Federal bench: the likes of Robert Bork, Ralph Winter, Antonin Scalia, Richard Posner, Sandra Day O'Connor, and Anthony Kennedy.

The second track was even more forward looking and involved the apprenticing of a new generation of conservative lawyer-intellectuals-under-30 to the Reagan apparat. This second track required fresh meat, which is where the Federalist Society came in. The founding chapters of the Society were established at Yale, where -- Bork taught before Reagan nominated him to the bench, and at the University of Chicago, where Scalia was faculty advisor and from whose ranks he would later recruit former student-Federalists to prestigious Supreme Court clerkships. Originally the chapters were little more than a debating circle and comfort station for young conservatives who felt themselves victimized by liberal persecution. The Society's executive director Eugene Meyer recalls of his experience at Yale Law School "someone was writing 'fascist' on our posters, or taking them down. Then cooler faculty heads [such as Bork] channeled our angers and frustrations into organizational activity." Keen self-promoters, they made a mascot of James Madison (on the debatable grounds that he favored decentralized government in his later years) and took the name of Madison's 18th-century Federalist Party as their own.

For the Reaganites running the federal government in the 1980s, the Society was a godsend. Here was a group of hard-charging legal minds committed to a set of principles that could not have been better suited to the judicial implementation of a Republican agenda if Ed Meese had drafted them himself. The Federalists were (and remain) "originalist" in their approach to the Constitution--meaning that they favored strict textual readings that tended to shear back constitutional principles developed during the more liberal Warren Court era. In terms of substantive law, they promoted the conservative mantra of states' rights to leach power away from "big government" in Washington. At a deeper intellectual level they tended to be either libertarians (meaning that they opposed government regulation as an intrusion on individual liberty) or devotees of the free-market cult of law and economics (meaning that they opposed government regulation for interfering with "market efficiencies").

Naturally, the new Washington establishment snapped up the founding Federalists. The student cadre graduated and went to work in the Reagan White House and Justice Department, and to clerk in the chambers of newly appointed conservative judges. Edward Lazarus, whose recent book, Closed Chambers, momentarily breached the sanctity of Supreme Court manners and procedures, recalls the arrival of 10 young Federalists as clerks in the October 1988 term ("the cabal," they called themselves), who "created a critical mass of ideological conservatives." Lazarus, a "dreaded lib," clerked for moderate Justice Harry Blackmun, and records how the Cabal ran its own email network. They "obsessively" worked as a "collective mission" to influence conservative justices, notably on death-penalty cases expediting executions, about which one emailed the others: "We need to get our numbers up." Lazarus quoted another cabalist who, venting his rage about the refusal of the Senate to confirm Robert Bork for a seat on the high court, said: "Every time I draw blood, I'll think of what they did to Bork."

The Federalist Society's student founders acquired conservative polish from the leading politicos of the Reagan and Bush eras, and have gone on to become political powers in their own right. Lee Liberman Otis and David McIntosh, who founded the Society's University of Chicago Chapter, were trained at the Justice Department by Edwin Meese. Liberman then was graduated to the position of assistant general counsel at the Bush White House under C. Boyden Gray. Reporters quoted Otis and McIntosh in 1986 as saying that nearly half the 150-odd political appointees they cleared, including five of the 10assistant attorneys-general, were active in Society programs. Otis is now a counsel and policy adviser to Sen. Hatch on the Senate Judiciary Committee. As for McIntosh, he became executive director of Vice-President Quayle's Council on Competitiveness ("making sure," according to Time Magazine, "that new environmental and health laws are as beneficial to business as possible"). He subsequently became a congressman from Indiana, and now is running for governor. Another charter member, Spencer Abraham, Michigan Law '86, is running for re-election to a second term as Republican senator from that state. He sits on the Senate judiciary Committee under Hatch. All three are founder/directors of the Federalist Society, with Otis and McIntosh as co-chairs. (Editor's note: McIntosh lost the race for governor in a landslide. Abraham lost by one percentage point to Democrat Debbie Stabenow.)

As the Society grew in influence, it grew in wealth. A year after founding the first student chapters in 1982 at Yale and University of Chicago law schools, student leaders received $25,000 for their first national symposium, the seed money coming from the Institute for Educational Affairs, overseen by the influential conservatives William Simon and Irving Kristol. By 1998, the annual contribution total had soared a hundredfold to $2,600,000 -- a third from core conservative underwriters like the John M. Olin Foundation, the Sarah Scaife Foundation, the Lynde and Harry Bradley Foundation, and the Lilly Endowment, whose sustained patronage has nurtured the tightly linked constellation of think tanks and advocacy groups that form the spine of the conservative movement. Under Simon's leadership, the Olin Foundation is a principal patron of the Federalist speakers bureau. It has also been active at the level of law school faculties: By providing grants to fund visiting professorships in law and economics, it opens doors to academics who are likely to be sympathetic to the Society's agenda. In 1999, Microsoft for the first time gave the Federalist Society $75,000. "The Microsoft case: Legal and Political Implications" was a featured panel topic in Federalist meetings.

As its wealth has increased, so have the Society's membership rolls. In 1983, there were 17 Federalist chapters based solely at law school campuses. Today, there are lawyers' chapters in some 60 cities, and student chapters on 140 out of 182 accredited law school campuses. Law students constitute more than half the total membership. The Society has opened a drive to recruit more professors. Young recruits are attracted by ideology and ambition--the promise of joining alumni such as Otis, McIntosh, and Abraham in the highest reaches of power politics. In 1997 a full $560,000--one-quarter of the Society's budget - underwrote the high visibility programs organized by the Society's well-endowed national speakers bureau, whose outreach reinforces recruiting efforts on campus. Prominent campus ambassadors include Charles Murray, author of The Bell Curve, Abigail Thernstrom, author of America in Black and White, and Dinesh d'Souza of the American Enterprise Institute. Leaders of right-wing activist organizations also travel the campus circuit, the Federalist cover softening their right-fringe reputations (see "Provocation 101").

But the Federalists are not just about recruiting young bodies. They are also active in shaping the law.

Perhaps the network's most far-reaching victory in recent years was a 1999 decision by a Federal appellate panel of DC Circuit judges in a case called American Trucking v. EPA, which stunned clean-air advocates by rolling back EPA standards covering smog and soot.

The decision was based on the principle of "non-delegation," a rigid and archaic reading of the Constitution, which holds that Congress retains all legislative authority, but not the power to delegate regulatory power to executive agencies. C. Boyden Gray, a member of the Federalist Society's Board of Trustees, filed a friend-of-the-court brief in American Trucking. Gray was also good enough to share his insights on non-delegation with the Federalist convention in November when he moderated a panel discussion entitled: "The Non-Delegation Doctrine Lives!"

One extraordinary thing about the American Trucking decision was just how well is served private industry at the expense of the public interest. A commentator writing in a Federalist Society newsletter crowed that American Trucking will save industry "in the neighborhood of $45 billion per year." Perhaps that is true -- and perhaps industry would save even more money if the courts decide to eliminate, for example, the Food and Drug Administration's jurisdiction over food and drugs. But the social costs would be enormous.

The Practice Groups

The key mechanism for putting the Society's theories into practice is its "practice groups" that it has organized in 15 areas ranging from administrative law to civil rights to put its theories into practice. These groups permit the Society to recruit pro bono legal brainpower for conservative causes. Busy litigators for activist conservative organizations double as leaders on the executive committees of the practice groups. Here, strategies and theories for potential litigation are introduced, debated, and circulated. The results are carried back to the activist groups, which pick the causes and cases to be litigated, file the suits, write the briefs, argue the cases, arrange publicity, and change the law. You get an excellent fix on Federalist influence from studying a who's who of Federalist practice group leaders. These movers and shakers include:

*C. Boyden Gray -- is chairman of Citizens for a Sound Economy, a conservative advocacy group. The Washington Post recently reported that Gray's organization has accepted millions of dollars to champion corporate causes, including payments from: affected sugar producers (to work against efforts to restore the Florida Everglades); Exxon (to fight against the campaign to reduce global warming); Philip Morris (to resist higher cigarette taxes); Microsoft (to weaken antitrust enforcement); and certain auto rental companies (to undermine Florida's tort laws). The peripatetic Federalist board member is a subcommittee chairman of the Society's Administrative Law and Regulation practice group.

*Manuel Klausner -- is a litigator for the Individual Rights Foundation and was a lead attorney for Californians Against Discrimination and Preferences. Klausner successfully defended the constitutionality of Proposition 209 (California's anti-affirmative action statute) and has also worked to block benefits to illegal immigrants in California. Klausner is chairman of the Society's Free Speech and Elections practice group.

*Michael Rosner -- is a litigator for the conservative Center for Individual Rights. Rosner collaborated with Klausner on Proposition 209. As defense attorney in a celebrated Virginia rape case, he recently used states rights to argue before the Supreme Court against the constitutionality of provisions of the 1994 Violence Against Women Act. Rosner is a vice chairman of the Society's Civil Rights practice group.

*Michael Carvin -- is a founder and board member of the Center for Individual Rights. Carvin argued and won a recent Supreme Court voting rights case limiting the federal government's ability to protect minority voters in state and local elections. He has also worked on numerous anti-affirmative action cases. Carvin is chairman elect of the Society's Civil Rights practice group.

*James Bopp -- is general counsel to the National Right to Life Committee and legal counsel to the Christian Coalition. Bopp has led campaigns against the McCain-Feingold campaign finance reform bill and legalized abortion. Bopp chairs a subcommittee within the Free Speech and Elections practice group.

*Roger Clegg -- is chief counsel for the conservative Center for Equal Opportunity. Clegg has labored to roll back affirmative action statutes, as well as bilingual education and immigrant rights. Clegg is a vice chairman of the Society's Civil Rights practice group.

A major factor in the Society's success has been the composition of the federal bench. (There are still more sitting Republican than Democrat-appointed federal judges.) One reason is that the gatekeeper to the federal judiciary is Republican Sen. Orrin Hatch - who happens to co-chair the Federalist Board of Trustees (with Robert Bork) at the same time as he chairs the Senate Judiciary Committee. As such, he is chief blocking back for delay-oriented Senatorial Republicans on the confirmation of President Clinton's judicial nominations. With as many as four Supreme Court justices approaching retirement in the relative near term, Hatch has the judicial implications of the 2000 elections very much in mind. In the past, he has made so-called "judicial activism" a litmus test for Democratic appointees. Applying that theme to the upcoming elections, he has warned that placing nominations in the hands of a "far-left" Gore or Bradley would bring about "a sea change in the law to the detriment of every family, every religion, every person of conscience."

Retired federal judge Lawrence Walsh, who screened judicial nominees as deputy attorney-general for the Eisenhower Administration, declares that the Federalist subtext of Hatch's statements goes over line: "By his very statements, Hatch supports my concern that the attack on judicial activism is a political attack; and an organization devoted to that [the Federalist Society] is thereby a political organization," says Walsh. "Our Constitutional and judicial processes will surmount almost anything... but dogmatic views developed wholly outside the system."

Walsh is speaking of the federal courts here, but his caution applies equally to developments in certain states. Consider what has happened in Michigan, where Governor John Engler and five of the seven justices of the state Supreme Court are Federalist members -- including Steven Markham, a Reagan official and former head of the D.C. Federalist Society chapter. According to a recent survey, in 20 cases before that court pitting private citizens against insurance companies and corporations, the Michigan Supreme Court decided against individual plaintiffs 19 times. During the previous year, when moderates help a 4-3 majority, individuals won 22 of 45 cases.

Law, politics, or both?

Funnily enough, despite all that its members and affiliates have done in the service of the conservative cause, the Federalist Society is decidedly reluctant about claiming credit for its impact out in the political world.

"We do not touch partisan politics in any way shape or form," says the Society's executive director Eugene Meyer. "We do not lobby. We are a forum for ideas, discussion, and debate."

Meyer has financial reasons to say this: The Society's tax-exempt status requires it to stay away from political activity. But to call the society apolitical is a bit of a stretch, says Alfred Ross, whose Institute for Democracy Studies tracks right-wing organizations and will soon publish a report on the Federalist Society. Ross points out that strategizing and working to change the law is an inherently political act. The Society "pollinates, permeates, and shapes the rhetoric and the debate about the law itself" says Ross. "To the extent that the judicial system is how a democratic society is organized, of course the Federalists are political."

To see that he's right, one need only review changes that litigators linked to the Federalists have wrought upon the law. They have weakened or rolled back statutes on civil rights and affirmative action; voting rights; women's rights and abortion rights; workers' rights; prisoners' rights; and the rights of consumers, the handicapped, and the elderly. Add to that the consequences of non-delegation if further extended. Regulatory oversight by federal agencies would then be kicked back to Congress and the states--like the power to preserve open pipelines in telecommunications, to regulate transportation, the drugs we take, the food we eat. Would we really want elected officials directly responsible for regulating industries that are also major sources of their campaign funds? That is very much a political question-one to which the Federalist Society's answer is unfortunately all too clear.