Why Is There No Liberal Federalist Society?

Why Is There No Liberal Federalist Society? January 28, 2019

Law professor Evan Mandery has a long essay at Politico about why there’s no liberal equivalent of the Federalist Society. There’s the American Constitution Society, but they are dwarfed by the resources and influence of the FedSoc. He offers several possible explanations for this.

There actually is one liberal analog to the Federalist Society, but chances are you haven’t heard of it: the American Constitution Society, founded in 2001, after the Supreme Court decision that effectively handed the presidency to George W. Bush. In the wake of what ACS President Caroline Fredrickson calls the “Aha! moment,” ACS was launched as a conscious response to the Federalist Society. Their operations are mirror images: conferences, chapters of law students and practicing attorneys, and education projects.

But the playing field is decidedly not level. The Federalist Society has more student chapters, more than twice as many lawyer chapters and a huge fundraising edge. In 2016, ACS had total revenues of approximately $6.5 million, while the Federalist Society took in $26.7 million. And the relative impact of the organizations can hardly be compared. The federal and state judiciaries are filled with Federalist judges, but there are no “ACS” judges to be found on the Supreme Court or the federal benches. It’s just not a thing.

That’s not quite true. The ACS does consult with Democratic presidents to compile lists of potential nominees to the federal courts at all levels, but they don’t have the kind of hammerlock on the process that FedSoc has on the nomination process when Republicans hold the White House. One explanation he offers is history — FedSoc is decades older than ACS, so has had more time to spread its influence. And yeah, I’m sure that’s part of it, but not much of the real story.

The second explanation is that FedSoc gets much more funding from corporate America because its agenda lines up much better with what the big donors want.

A second explanation is that the Federalist Society has a more natural base of big donors. “Their work aligns with corporate America much more neatly than ours does,” Fredrickson says. The Federalist Society receives significant funding from libertarian industrialists, including the Koch brothers, Richard Mellon Scaife’s foundation and the Mercer family. Those donors like the broad hands-off legal philosophy the Federalists espouse. Liberals, by contrast, are more inclined to be attached to individual social causes, Fredrickson says, and left-leaning philanthropy tends to be “short-term performance based.” Conservatives, she says, “have an interest in funding infrastructure.”

Certainly true. But he offers another layer of explanation that is important: It’s just easier to sum up conservative judicial philosophy in simple truisms and platitudes, which makes it a much easier idea to sell.

The most significant reason for the disparity, though, runs deeper and poses a daunting challenge for the left. Since its conception, the Federalist Society has had one consistent and very graspable ideological backbone: that the Constitution should be interpreted as having the meaning it had when it was enacted. So-called originalism gives the Federalists a catchy intellectual hook…

The Federalists’ mantras are succinct and understandable: The law should be neutral. It is the duty of the judiciary to say what the law is, not what it should be. Whatever its theoretical weaknesses, says Columbia Law School’s Jamal Greene, “originalism’s simplicity is one of its chief selling points.” And in the abstract, it’s widely popular: In one study by Greene and his colleagues, 92 percent of people expressed support for the idea that a good Supreme Court judge should “uphold the values of those who wrote our Constitution two hundred years ago.”

Standing behind the original meaning of the Constitution gives the Federalists a deeply appealing claim to a neutral, timeless American tradition. It is also complete nonsense, according to scholars who’ve looked at the rulings of “originalist” judges: Those judges tend to issue politically conservative rulings regardless of the larger principles at stake. Judge Richard Posner, no liberal, has ridiculed Scalia’s claim that originalism and the related doctrine of textualism offer greater certainty than competing principles, such as interpreting the Constitution as an evolving document. Originalism, for all its pretenses, is no more than a fig leaf for injecting politics into the judiciary.

Judicial neutrality may be a fiction, but it’s a useful one—and an idea for which liberals just haven’t found a response. The Federalist Society’s claim that the law should be agnostic on policy consequences is seductive to law students and lawyers; the invocation of the Constitution gives it rhetorical roots in the foundations of the Republic.

And now we’ve gotten to the core of the problem. Legal formalism is powerfully seductive, even while being mostly impossible and nonsensical in practice. The only possible retort I see from legal realism, which tends to be in line more with liberal judicial philosophy, is pragmatism. There are deeper arguments to be made, of course, but they are not easy to sum up in a catchphrase.

Personally, I prefer Jack Balkin’s Living Originalism and think it has some potential in terms of being able to provide a cogent, easily understandable alternative to conservative originalism. But pushing that idea into the political mainstream requires organization and infrastructure, which the left does not have in this field. We need some progressive billionaires to put some serious money behind it.

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