The Federalist Society, part 1: Immodest Origins

There's a powerfully connected right-wing organization operating at every elite law school in the nation. It built itself by leveraging the conservative victim complex, the Reagan revolution, networks of judges and activists, and cold hard psycho millionaire cash. This is the story of the Federalist Society. If you can't get enough of these monsters, you may want to read The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, 2008) by Steven Teles, or listen to ProPublica and WNYC's "We Don't Talk About Leonard" series on On the Media.

A podcast where we dissect and analyze the Supreme Court cases that have ruined our constitution like the polar vortex is ruining my week

0:00:00.0 Mitch McConnell: It really is true that this is one of my favorite organizations in the whole country.

0:00:09.7 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are digging into the Federalist Society. Fed Soc organizes at law schools to combat "Orthodox liberal ideology" but its influence extends far beyond campus. This is the first episode of a four-part series about Fed Soc. Today the hosts are talking about how the organization went from being a small group of disgruntled conservative students to handpicking judges for the highest court in the land. This is Five to Four, a podcast about how much the Supreme Court and the Federalist Society suck.

0:00:50.5 Peter: Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have ruined our constitution, like the polar vortex is ruining my week. [laughter] I'm Peter, I'm here with Michael.

0:01:01.2 Michael: Hey everybody.

0:01:02.6 Peter: And Rhiannon.

0:01:03.1 Rhiannon: Hi. It's ruining my week and I'm in Texas. I don't know if it's polar vortex, but it's low on the thermometer. And it doesn't feel good.

0:01:11.3 Michael: No.

0:01:11.7 Peter: It's cold.

0:01:20.1 Michael: Don't like it.

0:01:23.4 Rhiannon: Yeah.

0:01:24.3 Peter: I live in a wind tunnel. Right off the East River in Queens. And walking down the street when it's super windy is genuinely embarrassing because I will just be getting knocked around by the wind [laughter] like a toddler just bouncing, trying to get my balance.

0:01:34.7 Rhiannon: Yeah. Yeah. Or like one of those silent movies. Right? Like a whole movie back in the day was just trying to fight wind walking down the block.

0:01:43.6 Michael: Right. Yeah. It's like a Charlie Chaplin flick.

0:01:49.8 Rhiannon: That's Peter.


0:01:49.9 Michael: Do you hear some piano music in your head as you're doing it?


0:01:53.0 Peter: The worst part is that you'll see other people who are just walking normally and I'm like, "What is the difference in our physiology? What's going on here?"

0:02:01.7 Rhiannon: How can I work on this at the gym? [laughter] Why do I address this?

0:02:07.6 Peter: Right? Is this hips? Is that what I need? Oh, all right. Well this is, believe it or not, our first episode of the New Year. Happy New Year folks.

0:02:19.7 Rhiannon: Yeah.

0:02:22.6 Peter: And what a new year. It has been 2024, of course the final year, as they're calling it.

0:02:26.9 Rhiannon: Of America. Yeah, that sounds right.

0:02:28.1 Peter: Next year will not happen from my understanding.


0:02:32.7 Michael: That's right.

0:02:32.9 Peter: Now, this is a bit of a special occasion for us because this is the first of a four-part series on the Federalist Society. We thought we need to do a big episode to kick off the year. Let's do one about the Federalist Society. Then we started plotting it out and we thought, actually this is several episodes. We're trying to give our listeners a comprehensive understanding of what this organization is. And just to sort of kick us off, if you don't know, the Federalist Society is a conservative legal organization. On the surface it looks pretty harmless, they host academic discussions on law school campuses. They advocate for conservative legal interpretations and they serve as a networking organization for like-minded lawyers and law students. Below the surface though, they are one of the most powerful and influential organizations in the country.

0:03:29.2 Peter: They coordinate with Republican politicians and conservative billionaires. They elevate right-wing extremists into the federal judiciary. And they have taken previously fringe legal theories and made them mainstream. They became a bit of a household name in 2016 when Donald Trump pledged to rely on the Federalist Society's list of preferred nominees for the Supreme Court, a pledge that he kept when he elevated Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all committed Federalist Society members to the Supreme Court over the course of his term. So in our next episodes, we're going to get into how exactly the organization works, the damage that they have done to our law and how they can be beaten.

0:04:14.7 Leon: But first we're going to tell the story of how they got to where they are. We're going to walk you through a kind of wild tale of what started as a small academic student conference grew into what is effectively today the judicial wing of the Republican Party. That story starts with liberal successes in the mid-century, which spurred the right wing into action, leads us into the early years where they were a small but extremely well connected organization. Their step forward into prominence during the George W. Bush administration and their plot to seed American courts from top to bottom with hyper conservative judges, which culminated during the Trump administration and continues today.

0:05:02.4 Rhiannon: Yeah. We're all living with the judicial system that the Federalist Society has created.

0:05:06.6 Michael: That's right.

0:05:17.0 Leon: Our research for this series included the work of various legal scholars and historians, as well as interviews we conducted with students, lawyers, academics, and judges. This episode in particular is informed by the work of and our discussions with Professor Steven Teles, who wrote a book called The Rise of the Conservative Legal Movement back in 2008. Michael, I'm going to hand it over to you.

0:05:31.0 Michael: So we want to tell you the story of the Federalist Society. We will probably call them reactionaries dozens of times throughout these episodes. It's important to understand what they're reacting to, where they come from, what they started with. And so that story starts, like Peter said, with liberal successes starting in the 1930s. And this was after the stock market crash and the Great Depression ushered in an era of pretty much unparalleled dominance at the federal level of the Democratic Party between 1933 and 1969. They held both houses of Congress for 32 out of 36 years. And the only Republican to win a presidential election in that time period was Eisenhower.

0:06:17.5 Michael: Now, the parties weren't identical to how they are now in the South. Obviously, Democrats brutally enforced Jim Crow, which was an apartheid state, kept afloat by one party rule, extra legal violence, vote suppression, etcetera. And in the North you had Rockefeller Republicans who would be more recognizable as centrist Democrats today. But this was the dominant sort of political arrangement for 40 years essentially. And it was one of active government in the market economy, a robust welfare state, heavy taxes on corporations, etcetera. And so this is also the seed of first reaction, which was the original reactionaries, were reacting to this big government intervention in the economy. And were very economically minded.

0:07:08.9 Michael: Now in the '50s and '60s, that starts to change a little as the rise of the civil rights movement and the sexual revolution create a lot more cultural conservatives as well. And this is driven by an entire generation coming up whose ideas about government in society we're shaped by the New Deal. Were shaped by the defeat of the Nazis in World War II, who were very liberal minded coming up into graduate school, into their professions in the '50s and '60s out of this sort of liberal heyday. All the while you had all these federal agencies and judges who had been appointed by all these Democrats. So you had a liberal bureaucracy, a liberal judiciary for them to engage with.

0:07:57.0 Peter: And liberal academia. Right?

0:08:00.1 Michael: That's right. So this begins bearing fruits in the '50s and '60s in the courts. You see, for example, Brown v. Board a case I think everybody knows saying segregation is unconstitutional. Other big liberal wins in this time included Gideon V. Wainwright ensuring that indigent criminal defendants have a right to counsel Miranda v. Arizona, Loving v. Virginia, striking down anti-miscegenation laws. These are driven, like I said, by an increasingly liberal population, an increasingly liberal group of young lawyers and judges, but also by liberal public interest groups like the NAACP and the ACLU. They were important not just in driving cases at the Supreme Court, but also creating state court roadblocks to conservatives. One conservatives did get power at the state level using lawsuits.

0:09:01.7 Peter: I think it's probably worth noting that it's in the mid-century when you start to see the archetype of the heroic lawyer in media and culture. The lawyer that comes in and rescues us from injustice, it starts popping up in movies.

0:09:20.4 Michael: Atticus Finch.

0:09:20.5 Peter: Right. Right. This isn't an archetype that really existed much before. And it starts when there is this sense that these liberal groups and these liberal lawyers are doing great things for the public. Right. Like Thurgood Marshall at the NAACP is suing to end segregation and things like that.

0:09:37.6 Michael: This creates demand at the law schools for avenues for these young idealistic law students to live their ideals, both in school and to chart a career path where they get to act on those ideals. And this is part of the changing public imagination about the law and about what's possible. And the way the schools respond to this is with the legal clinic, which is part of a law school where you see working professional lawyers engage with law students to do work on a pro bono basis to help out indigent clients. Almost always in the service of what I think most people recognize as liberal goals in liberal policy ideals.

0:10:24.1 Peter: Yeah. Helping poor people, right.

0:10:25.0 Michael: Yeah, exactly.

0:10:27.9 Peter: Communist bullshit.


0:10:28.0 Michael: That's right. So conservatives are reacting to this. They're reacting to all of this. They're reacting to democratic dominance of politics. They're reacting to liberals, controlling the judiciary and the federal government, and all these bureaucracies, and these law schools, and seeing all these public interest groups. And they don't know where to start. And where they do start is by saying, "Well, maybe we need some of our own public interest groups. Maybe we need some legal clinics or institutions."

0:11:02.0 Peter: Right. What about an organization for the advancement of White people?

0:11:05.6 Rhiannon: Exactly.


0:11:06.1 Michael: That's right.

0:11:06.8 Peter: I'm joking. But you know that was floating.

0:11:08.4 Michael: That's right. [laughter] That's right. They want somebody who will fight on behalf of oil pipelines against the environment. And their initial attempts with this go poorly, buy-in large. One of their first ideas is that they should have their own public interest law firms. And the first generation has a lot of problems. They were generally sort of region specific. They were very parochial and strongly allied with like local businesses that while conservative weren't necessarily like ideological true believers.

0:11:41.5 Peter: They were like self-interested.

0:11:42.2 Rhiannon: Yeah.

0:11:43.7 Michael: Right. So for example, we have the Mountain State Legal Foundation founded by Joseph Coors of the Coors Beer Company. Which was very successful originally in the Mountain West focusing on environmental issues.

0:11:57.3 Peter: So to speak, I imagine.


0:11:58.7 Michael: Yes. Exactly.

0:12:00.0 Rhiannon: Yeah. Environmental issues of a certain type of concern.

0:12:02.8 Michael: Conservative environmental issues are like, we should be able to dump waste in the river.

0:12:08.1 Rhiannon: Exactly.

0:12:08.8 Michael: And we need to get these oil pipelines built.

0:12:10.3 Peter: I have 100 million gallons of beer and I want to just dump it into this stream.

0:12:16.5 Michael: Yes. [laughter] And so it implodes when the libertarians who run the sort of litigation part of it decide to go after a local sort of nascent cable company that was getting a monopoly in Denver. Kors, who was friends with the cable magnate, [laughter] dropped the whole thing and was like, "This isn't why I founded you." And that was that.

0:12:41.9 Peter: They lost the faith of Joseph Kors.


0:12:44.8 Michael: Right. So throughout the '70s, you have a lot of this tension where they're allied with business and they're having trouble sort of figuring out a good national strategy and a good coherent ideology. So Michael Horowitz, who's a conservative activist, who will eventually serve in the Reagan administration, writes this report for the Scaife Foundation, which is a big conservative sort of moneyed group. And his diagnosis is like, "We're looking at this all wrong." So we've talked to a bunch of different experts, and you're going to hear from them throughout the series. Right now I want to bring in Steven Teles who again wrote the book, The Rise of the Conservative Legal Movement, to talk a bit about conservative legal foundations in the '70s, their failures to advance conservative ideology in the law and the end of their entire project.

0:13:40.3 Steve Teles: Michael Horowitz, he writes a very influential report for conservative funders saying that their existing investments in conservative lawyering were being unsuccessful. They had started a bunch of these conservative law firms in the '70s. And Horowitz comes in around 1980 and says, "All of this investment has been kind of a waste because it's all based on a sort of implausible strategic theory." Which was that if you just come in on the other side, when liberals are trying to do stuff, so like Nader organizations or the EDF or whatever suing, if we just come in on the other side and do amicus briefs and show what liberals are trying to do, that we can stop them.

0:14:30.5 Steve Teles: And Horowitz said, "That's not going to work. One, it's not going to work because it gives agenda power to liberals, right. They're determining where the fights are, and all you're doing is sort of being defensive." And he also says it's insufficiently intellectual and inspiring. And that the advantage that liberals have is that people think that their ideas are public spirited, whereas the conservatives sound like they're just advancing the interests of coal companies or cable owners or whatever.

0:15:04.0 Michael: And his diagnosis is, you're looking at it this all wrong. You go to law school, you go on campuses and liberals can attract idealistic students by claiming moral high ground and saying like, "We're doing something important." And they can point to a vision. And this is where all the young energy is, this is where the ideas are being debated that will inform future court opinions. This is where leaders are being trained. And so rather than focusing on car dealers in the south or whatever, this is where conservative energy should be. We should be figuring out a positive ideological vision to attract talented students.

0:15:51.5 Peter: Right. The idea being like conservative public interest groups, they're coming in too late to the game. Right? You have to build from the ground up from law school campuses up.

0:16:01.9 Michael: Right. And he says, "Yeah, this is how networks develop." And this report gets circulated amongst a lot of conservative foundations informally. It eventually makes its way to the Olin Foundation, which was another big conservative money backer. And it has a very receptive audience in Olin. There's internal documents where they were willing to fund a lot of these legal interest groups before reading this report. And then after reading it, were much stingier with the funding. And we're instead more receptive to this idea of like, maybe we should be focusing on campuses.

0:16:41.0 Michael: And so this created essentially a supply of money for campus organizing, right? These groups that were primed to invest in conservative organizing and law school campuses in the late '70s, in the early '80s. And I am just going to hand it over to Rhiannon to talk about the demented little freaks who made up the demand for campus organizing for conservatives in law schools in this time.

0:17:08.0 Rhiannon: So let's talk about how the actual organization of the Federalist Society gets founded. And this story starts with students and with law schools. Because even though we think today of the Federalist Society as an organization of maybe just lawyers and judges, it starts on law school campuses as a student organization for conservative law students who really did not see their ideology and politics reflected in the law school curriculum. And it's at this opportune time in the late '70s, early '80s when conservative foundations are simultaneously looking to support and fund the development of conservative thought in the mainstream.

0:17:48.0 Rhiannon: So say you're a conservative law student at Yale, or at Chicago in 1980, 1981, the founders of the Federalist Society talk about a disconnect at this time between what they believed politically and what was an ascendant popular conservatism nationwide on the one hand. But then on the other hand, what they were being taught in law school, what was being discussed in law school. So on the one side, this kind of ascendant conservatism in national politics, you have Ronald Reagan, who has just been elected president in a landslide.

0:18:26.9 Rhiannon: The Reagan revolution is underway. There is a conservative political realignment happening. Conservative lawyers are getting hired into powerful positions in the federal government and in the Reagan administration. But then on the other hand, this conservative ascendants is not manifesting or being reflected on law school campuses at this time from the perspective of these law students. In a law school classroom in the late '70s and early '80s, Roe v. Wade is being taught as accepted law. Miranda v. Arizona is accepted low. The Voting Rights Act is landmark, constitutionally sound legislation that no one at an elite law school at this time is really seriously thinking about challenging.

0:19:11.1 Peter: To give us a little bit of color here, this is from a political piece from maybe five years ago, there's an anecdote about one of the founders of the Federal Society being in a classroom where the students are asked, "Who voted for Reagan?"

0:19:24.0 Rhiannon: Yeah.

0:19:25.1 Peter: And out of something like 90 students, just a couple of raise their hands, so it's sort of this clear illustration of just how far to the left the median law student is.

0:19:35.1 Rhiannon: Well, and not just how far to the left, but the idea that conservatives would be afraid to admit in a law school classroom at an elite law school campus that they were conservative and that they had voted for Reagan, right?

0:19:48.0 Peter: That's exactly right. Either everyone's liberal or the conservatives are deeply ashamed to admit that conservative and either way. It's a big problem, right?

0:19:56.3 Rhiannon: So in 1980, 1981, conservative law students first at Yale and Chicago start to coalesce around this idea that they're isolated in law school, that conservative legal ideologies are not taken seriously, and that liberalism in the law was being taught as an orthodoxy. That you were looked down upon or shunned if you were a conservative law student, one of the student founders of the Federalist Society, for example, her name is Lee Liberman Otis, she said, "There was no student organization that seemed interested in Reagan's legal ideas." And in his book, Teles, describes conservative law students in the early '80s as, "Alienated in their home institutions, desperate for a collective identity and eager for collective activity."

0:20:44.4 Rhiannon: This is really important because this is a central idea, not just to the founding of the Federalist Society, but throughout its growth to this day, we're going to be referring back to this idea throughout this series, this idea of the conservative as victim, the conservative as someone who always has the burden of countering liberals monopoly on legal thought, the conservative as a member of a disempowered silent majority that is shunned by academic elites, this is a motivating central idea in the Federalist Society to this day. So those conservative law students who would become the founders of the Federalist Society, they were at Yale and at Chicago, they started to think about a law student organization that could unite conservative law students who had felt isolated on campus up to that point.

0:21:33.0 Rhiannon: And they come up with the idea to host a symposium at Yale Law School in 1982. These organizers of the symposium, Steven Calabresi, who was a 2L at Yale and his friends at Chicago, Lee Liberman Otis and David McIntosh, they became the founders of this new student organization called The Federalist Society. Now, that name the Federal Society is a reference to federalism, the division of power between the federal and state governments, Conservatives of course, always highly concerned with state's rights in our federalism system, so that's their nerd reference the Federalist Society.

0:22:12.1 Peter: Maybe it would have been too obvious to call it the state's right society, but that's what they mean.


0:22:16.2 Rhiannon: Exactly. So they landed on the Federalist Society, and as they're building their student chapters, the contingent at Yale recruited Robert Bork as their advisor, listeners of Five to Four are familiar with Bork, in 1982 at this time, he had just taken the bench as a federal judge for the Court of Appeals in DC. But he had previously been a professor at Yale and was previously also the US Solicitor General under Nixon. Meanwhile, the students at Chicago got Antonin Scalia to sign on as their advisor. Scalia was then a professor at Chicago, already very much popularizing originalism as a method of constitutional interpretation.

0:22:57.8 Rhiannon: And so the idea is to host a symposium in 1982 where conservative voices would be heard maybe they would have an event that would force liberal law professors to actually respond to conservative arguments, and in their words, they said they were inspired to put on the symposium because "Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology, which advocates a centralized and uniform society. While some members of the legal community have dissented from these views, no comprehensive critique or agenda has been formulated in this field, this conference will furnish an occasion for such a response to begin to be articulated."

0:23:41.7 Peter: You can see almost a Red Scare ideology.

0:23:42.8 Rhiannon: Yes, exactly.

0:23:44.4 Peter: Looking in here, right? The Centrist uniform society. Meanwhile, they're talking about Jimmy Carter.

0:23:52.5 Rhiannon: These are fucking communists, but really important to remember, it is not just these law students on their own, they have some conservative law professors guiding them and helping them get connected, of course, we've mentioned Scalia, we have mentioned Robert Bork. Scalia is playing an integral role connecting the law students so that it's not just law students doing this work, he is connecting to law students to moneyed organizations and other conservative students across the nation, including at Stanford and other elite law schools. And it's Scalia who directs them to the Institute for Educational Affairs, this is another conservative foundation.

0:24:31.7 Rhiannon: And IEA ends up providing most of the funding for that symposium. The Olin Foundation, which Michael mentioned also puts up money for the symposium, and that's funding that helps law students from around the country travel to Yale for the conference. The National Review, the conservative magazine, puts out a kind of ad for the symposium, and these law students at Yale organizing the symposium, start to get calls from all over the country from conservative law students.

0:25:00.8 Peter: Bring us to our comfort please. It's sounds really cool.

0:25:03.0 Michael: I would like to meet someone who might sleep with me.


0:25:09.1 Peter: In one quick aside to explain some of these right-wing benefactors who are pouring money into the Federalist Society at the early stages, and to this day, you've mentioned the Olin's and Scaife Foundation. Everyone nowadays knows about the Koch brothers and their influence, but in the '80s, the conservative billionaire networks were a little newer. The Olin Foundation was established in 1953 by John Olin, who was a wealthy businessman, it was originally just like a standard philanthropy outfit donating to hospitals and shit like that. But then Olin witnessed the student protests of the late '60s and in the early '70s, the EPA targeted the environmental practices of its company, and John thought, "You know what's more important than hospitals? Ensuring that higher education becomes ideologically conservative." And he began redirecting his fortune to that end.

0:26:04.9 Peter: You also have the Scaife Foundation, run at the time by Richard Mellon Scaife, heir to the Mellon banking fortune. He creates the foundation in 1964, essentially in response to the Civil Rights Movement, and he sets about putting his literal Gilded Age fortune to work to combat liberalism. He was notoriously reclusive and odd. In 1981, Karen Rothmeyer, a reporter for the Columbia Journalism Review at the time, tracked him down and asked him, "Mr. Scaife, could you explain why you give so much money to the new right?" And he responded, and I quote, "You fucking communists, get out of here."

0:26:48.1 Rhiannon: Holly shit.


0:26:50.8 Peter: And then he called her ugly, and then her mom approached them because she was about to meet with her mother and her mother a spotted her, and he called her mother ugly as well.

0:27:00.9 Rhiannon: Oh my God.


0:27:01.8 Peter: So that's a little bit of color on the people funding this operation from the beginning.

0:27:06.7 Rhiannon: Yes.

0:27:07.7 Peter: So a little slice.

0:27:10.1 Peter: Yeah, these are the people behind the money founding, the money backing of the Federalist Society, and that's really important to keep in mind because there's a kind of humble narrative around the organization's founding over just isolated conservative law students. We're putting on a conference, but their budget for that first conference was $25,000, that's over $80,000 today. And because of that backing from conservative foundations and already powerful thinkers in the conservative legal movement, the success of that middle humble conference is massive. Robert Bork spoke at the conference, right? Just because of that, the symposium gets coverage in the New York Times, and suddenly conservatives at many other law schools across the country are getting in touch with these student organizers and saying they want to attend conferences just like this.

0:28:08.0 Peter: Yeah, and I think that this is why, Teles, when you spoke with us continuously put this in the framing of supply and demand, right? You have all this elite conservative money looking to invest in law schools, you have these students taking the initial steps towards an organization, and you can see the energy around the country so that all the ingredients are there for something to be built very quickly.

0:28:35.5 Rhiannon: Yes, so coming off of that success at the conference organizers and here, I mean both the student organizers at Yale and Chicago, but also figures like Scalia and Bork and the conservative foundations, they're recognizing this demand for more chapters of the student organization at law schools across the country. The Federalist Society, student founders, that's Calabresi, Liberman Otis and McIntosh, they start drafting a pamphlet called, How to form a conservative law student group that they distributed to other law schools. And they're writing these proposals to those moneyed conservative foundations about what they want the organization to look like and what the organization could be doing to support conservative law students.

0:29:17.1 Rhiannon: So the same year as that first symposium 1982, the Federal Society sent a proposal to the Scaife Foundation in which they lay out the structure of the organization saying, "Fed Soc would be divided into three parts, law students, law professors and lawyers." And the proposal also outlined activities that the organization should focus on and engage in, including importantly career placement for law students. Here's a quote from those founding proposal documents, "Conservatives have long bemoaned the fact that clerkships to prominent conservative jurists have often gone to people with liberal views. Similarly, it has been contended that far too many legal posts in governmental offices, even those controlled by civil service regulations have been by liberals under Republican administrations. Finally, it is generally acknowledged that there is an insufficient number of conservative law school faculty."

0:30:10.7 Rhiannon: So you see that what starts as a modest proposal for a student organization, it really quickly is getting connected with donors, with high level conservative lawyers, with conservative professors and judges, and the students are then empowered to expand their vision beyond just a student group. They're empowered through that institutional backing to expand the vision so that the Federalist Society is not just a student organization, it's a nationwide network, it is a career pipeline.

0:30:37.7 Peter: That's right. And if you look at that quote, look at some of these complaints that some clerks that conservative judges have are liberal, right, some positions in Republican administrations are being held by liberals, what they're asking for is a monopoly on these positions. That is what their goal is.

0:30:54.5 Rhiannon: Exactly, and as they continue to flesh out who they are as an organization and they're building new Federalist Society Chapters at more and more law schools, these founding documents show that the Federal Society didn't want to alienate different factions of conservatives from joining by making the organization sort of outwardly, to committed to a certain line of conservative ideology. And when we talked to Steven Teles, he explained the organization's concern about factionalism.

0:31:23.0 Steve Teles: Some of the people who were people who started the Federal Society. A good example, this is Eugene Meyer, who's the long-time president of the Federal Society, had had a long experience in his case through his father, who was Eugene Meyer, who was the creator of the idea of fusion-ism, had been around a lot of this conservative student organizing and had seen it all torn apart through internecine competition for control of organizations, and that they really didn't want. They always, I think from the beginning, wanted an organization that was going to encompass the full range of conservative and libertarian thought on the law. And they didn't want it to be a venue in which people were going to be contesting for who was going to control the organization between those various different kinds of factions.

0:32:19.3 Rhiannon: And they also didn't want to alienate liberals from at least participating either, so remember, they want to network and be united as conservatives, but they're also wanting to convince other law students to be conservative, to be more conservative, and actually increase the number of conservatives in the law through this organization. That really strengthens their vision of the Federalist Society, again, as a debate club, as a place for the exchange of intellectual ideas and those kinds of phrases, that kind of description of the organization still holds today, that's still how they describe themselves.

0:32:56.3 Rhiannon: We should note here again, that in the early years, it can't be understated, Antonin Scalia is absolutely essential to the founding and the growth of the Federalist Society. He facilitates the Federalist Society having an office at the American Enterprise Institute within a year of its founding, and as we've already noted, the Federalist side receives notable funding from the Olin Foundation, the Scaife Foundation. And so they have in that same year a budget of about $120,000. That's huge for a brand new student organization on a law school campus at this time.

0:33:31.9 Peter: Adjusted for inflation, by the way, you're looking at about 400 grand.

0:33:35.4 Rhiannon: Right. And on top of that, you have Reagan administration officials helping get the Federal Society off the ground too. Michael Horowitz, who we mentioned before, who in the early '80s by this time is serving in the Reagan administration, he connected the Federal Society to get more conservative foundations and also just kind of expanded their connections in Washington, help them find speakers, get connected, have a talk, have a lunch with somebody in the Reagan administration. And some of those founding Federalist Society members are hired into the Reagan administration.

0:34:09.5 Rhiannon: Kenneth Cribb, who was an advisor to the Attorney General, and then assistant to President Reagan on domestic policy, hired Steven Calabresi as Special Assistant to the Attorney General. Then he hired David McIntosh and finally, Lee Liberman Otis was also hired in Attorney General William Smith's office as a special assistant. And so very quickly after the founding of the Federalist Society, you not only have great enthusiasm on the student level for developing this organization for students on law school campuses, but the development of a clear, explicit career pipeline.

0:34:42.9 Rhiannon: Members of this organization are getting hired in the federal government for clerkships with judges, and they're able to connect with the conservative legal movement and increasingly professionalized ways. Ways that they previously felt they could not from their law school campuses, and they're also building the conservative legal movement now, finally, from their perspective from the law school level.

0:35:04.2 Michael: Right, right. And I don't know if your experience has been different than mine, but we've been to several law school campuses, and we certainly have a bigger presence on law school campus is a more excitement around our podcast then the Federal Society did in 1980s. Nobody's ever been like, "Y'all, I got the billionaire you need to talk to, who will send you hundreds of of dollars to make sure your message gets out to as many people as possible."

0:35:30.6 Rhiannon: Yeah.

0:35:31.0 Peter: I can barely get my fucking am track reimbursed half the time. [laughter] If we have any billionaire liberal philanthropists listening, please help us.

0:35:42.4 Michael: Tom Steyer.

0:35:43.8 Rhiannon: We will take a billion.

0:35:44.3 Michael: We can open up all our Patreon episodes. If you're one of those guys leaving those comments being like, "This should be for the public. You can make it happen."

0:35:52.4 Peter: $3 million dollars. So let's give a quick overview of what's basically the first couple of decades of the Federalist Society. So by 1983, they have a strong foothold, right, they have a clear mission, a base of student support, they have strong connections with conservative elites, reliable sources of funding, and they have a basic organizational structure in place. With all of that together, they take steps to branch out first, they start opening as many law school chapters as possible, which is made easier by the fact that their initial conference was a head, got press attention. Then they look to establish their lawyers division, which was intended for established lawyers rather than students, which might seem kind of minor, but if you view the goal as the establishment of a professional network, it's a key step the organization can consist of just students and elite, you need practicing lawyers to flesh out the network.

0:36:49.5 Rhiannon: Exactly, yeah.

0:36:50.9 Peter: Over the course of the next few years, the organization is steadily growing, and by 1986, their annual budget has gone from the low six figures to over $1 million a year. By the late '80s, there are over 100 student chapters and 5000 members, not to mention a couple of dozen lawyer chapters. During this period, the organization maintains close ties with leaders at right-wing foundations like the Olin's and Scaife's, which allows them to craft a much more elaborate grant programs, and they might have otherwise. So it's not just that they have now the phone numbers of these big foundations, they have close relationships and they're working hand-in hand.

0:37:32.6 Rhiannon: Yeah, yeah.

0:37:33.4 Peter: There are a couple of events that seem to cause interest and membership to spike in the first decade or so of the Federalist Society's existence. One of the first major developments for the organization was the defeat of Robert Bork nomination to the Supreme Court in 1987. Robert Bork was an extremely conservative judge, and academic, of course, right. He's closely involved from the beginning, speaks at the initial conference alongside Antonin Scalia, who in 1986 was appointed to the Supreme Court. Bork gets nominated the next year, but because he was so conservative, the hearing turns into a dog fight over his extremely right-wing philosophy and his nomination is voted down.

0:38:15.1 Michael: We did a whole episode on that.

0:38:15.9 Rhiannon: Yeah.

0:38:16.0 Peter: Yeah. Check her premium episode about Robert Bork's failed nomination. Now, the way that Steven Calabresi put it was that people within the Federalist Society, "Genuinely felt outraged. They felt the way if their mother or father had not been confirmed to the Supreme Court or some close personal friend. There were a lot of people who felt this way and nursed their sense of grievance. And it became a martyrdom situation."

0:38:41.9 Michael: Conservatives aggrievance? No way. That's like oil and water.


0:38:48.0 Rhiannon: But you see it from the founding. And it's going to be all the way into 2024. They're martyrs, they're victims, they're attacked. That's the thesis.

0:38:58.1 Peter: The fact that Scalia was unanimously confirmed in the Senate the year before, irrelevant, doesn't clock with them at all. They immediately latch on when Bork is shot down to this feeling of marginalization and grievance. That energizes the entire organization. They're ostracized on campus at the beginning. They're ostracized and marginalized when Bork is voted down. In the early '90s, you get a few similar developments. In '91, you get the nomination of Clarence Thomas who's less active in the organization, but is a conservative who goes through a very contentious nomination process when he's accused of sexual misconduct by Anita Hill. Then you have the election of Bill Clinton, which puts Republicans out of power. And all of this feeds into the conservative feeling of marginalization, which energizes their organization and drives up membership.

0:39:48.7 Michael: That's right.

0:39:49.4 Rhiannon: This feels like a good time to take a break.

0:39:53.0 Michael: Alright, we're back. And we are at the point in this story where we've reached the early '90s. It's 1992. We have Planned Parenthood v. Casey, which is the case we've talked about on the podcast before. But I think you have to understand from the conservatives perspective what Casey represented. To do that you have to understand their initial reaction to Roe v. Wade as well. Because in the seventies they thought, "Well, look, we won, we elected Nixon and he appointed a bunch of Supreme Court justices." And then a lot of Nixon appointees ended up in the majority in Roe v. Wade, like Lewis Powell, Warren Berger. And so that wasn't sufficient, finally winning a presidential election was not sufficient. Appointing Supreme Court justices was not sufficient. It turned out Supreme Court justices, even the conservative ones, hired liberal clerks and ended up getting swayed by their clerks on issues.

0:40:46.2 Peter: The previous understanding of what a conservative justice was was insufficient.

0:40:50.9 Michael: That's right. And so this is their learning in the '70s and the '80s that they need to do more. They need to build this out more. And you get in the '80s, the dominance of the Reagan years. And they put Scalia on the court, they put Sandra Day O'Connor and Anthony Kennedy on the court. They have this new network of conservative students to be conservative justice clerks. So this is like building their anticipation at this point. And they're thinking we're finally going to do, it in the early '90s, we're going to overturn Roe v. Wade. That is the mindset of the conservative movement going into Planned Parenthood v. Casey. It's the culmination of two decades of work. And then the case comes down and does not overturn Roe v. Wade. Get fucked losers.


0:41:44.7 Michael: Instead, its core holding is upheld, although its protections are substantially weakened. And the plurality is made up of two Reagan appointees, Kennedy and Sandra Day O'Connor, and them H. W. Bush appointee, David Souter, to really dig the knife in. And so conservatives are looking at this and saying, well, Robert Bork goes up there and answers honestly with things we all believe, and he gets voted down and he doesn't get seated. These other so-called conservatives get up there and they give acceptable answers to the political elite, the governing majority. But then when Bush comes to shove, they're squishes, they give under pressure, they don't toe the partisan line. They don't come through for us, the conservatives.

0:42:38.6 Michael: You might think the lesson to draw from that is that what you want the courts to do is just not broadly politically popular and maybe to find a different goal, but no, they draw a very different lesson. Which is essentially that they need some sort of vetting, a vetting system where they can trust someone who goes up there and gives bullshit non-answers in confirmation hearings, will nonetheless come through for them when the tough case comes down. And this is something that the federal society is well suited to provide because conservatives aren't the majority on campus, and in their view sneered at, being a member of the Federalist Society is almost like proof of ideological commitment. You're willing to take the disdain of your peers and professors and wear it as like a badge of honor almost, means that we can trust you, that when you're in the hearing and you say, Roe v. Wade is settled law, that we know you're full of shit.

0:43:45.8 Rhiannon: You're giving a little wink wink to us. Yeah.

0:43:47.9 Michael: Exactly. And so this is how the Federalist Society starts to carve a new role for itself in the conservative apparatus.

0:43:57.9 Peter: So if you zoom out a bit over the course of the 80s and 90s, the organization is very successfully weaving itself into the fabric of the conservative coalition. At the same time, it's like learning these lessons and developing these grievances. They build ties with powerful right-wing groups like Focus on the Family. During the Clinton administration, the Federalist Society's members occupy an increasing share of the Republican controlled Senate judiciary committee, including their staffers. And they leverage that to apply pressure on Clinton to ensure that some of his nominees aren't too liberal. In '95, they use a hundred thousand dollars grant to establish practice groups, divisions that would provide resources for lawyers that were specific to certain areas of the law so there would be an environmental law practice group, a property rights practice group, et cetera. Although that was probably just one group for them.

0:44:51.8 Rhiannon: True. Yeah. Yes.

0:44:52.8 Michael: Yes. Yes.

0:44:54.2 Peter: And the point was to provide more targeted education for lawyers who wanted to sharpen their conservative intellectual bonafides and allow them to more readily network with like-minded professionals. And one thing before we move on to the 2000s, it's important to understand how they are billing themselves, how they present themselves to the outside world during this time. Their presentation on campus has always been, including to this day as a debate club, an organization that provides a forum for debates, which is not entirely disingenuous. That's something they do.

0:45:34.2 Peter: They host discussions and debates about the law on campus. To the average law student, that's the only part of the organization that's sticking out of the water. That's the tip of the iceberg. And that's important because it serves to obscure the more ambitious and plainly ideological elements of the organization's work and bring in a sense of security to liberals who were engaging in good faith with the organization.

0:46:04.6 Rhiannon: Yeah, exactly. And as we move through the '90s into the early 2000s, even though during the Clinton years Federalist Society members, they're not really boasting prominent positions in the Justice Department and getting federal judgeships. During the Clinton administration, Federalist Society and the conservative legal movement is again able to reengage around the idea that they are ostracized. I've heard the Clinton years being described as the Federalist Society's Justice Department in exile years. So they're able to coalesce again around this martyrdom that we're being left out that, as Peter mentioned, is boosting their membership, is boosting their donations, their foundation backing.

0:46:50.4 Rhiannon: And they had really laid the groundwork for a nationwide partisan network of GOP lawyers, which ends up being extremely useful in that presidential election when everything blows up over the Florida recount. And there is already, because of the Federalist Society, an extremely cohesive, unified legal response, a legal movement around the Bush campaign, legal support for the Bush campaign. And that election, of course goes to the Supreme Court in Bush v. Gore, and allows five conservative justices to hand Bush the presidency.

0:47:26.4 Michael: Bush v. Gore, if you aren't familiar with the case, is our very first episode, a big one.

0:47:33.8 Rhiannon: We should note here that three current Supreme Court justices who have at least formerly at some points in their career been associated with the Federalist Society, worked on the Bush legal team for Bush v. Gore. Amy Coney Barrett and Brett Kavanaugh both worked on the legal team in Florida. John Roberts current Chief Justice advised the legal team.

0:47:56.6 Michael: Clarence Thomas worked on it from the other side of the podium.


0:48:00.7 Rhiannon: Yeah. You could say Clarence Thomas worked on Bush v. Gore being a member of that bare majority to hand Bush the presidency. That's right. And so what you have at the beginning of the George W. Bush administration and what you're seeing play out is not just that they've laid a groundwork for contributions to the conservative legal movement and conservative intellectual thought, but you have actually, literally many career long Federalist society members by this time who have now come of age and are ready again to work within the government.

0:48:39.6 Rhiannon: During George W. Bush's first term, three cabinet secretaries were members of the Federalist Society. John Ashcroft, secretary of the Interior, Gale Norton, secretary of Energy, Spencer Abraham, the Deputy Attorney General, Larry Thompson was a Federalist Society member. Solicitor General Theodore Olson was a Federalist Society member. There were three positions in the White House Council's office that were given to Federalist Society members.

0:49:03.9 Peter: Theodore Olson, by the way, Ted Olson served the additional role of arguing Bush v. Gore before the Supreme Court on behalf of George W. Bush.

0:49:11.8 Rhiannon: There you go. So you have Federalist Society members now in government, in the federal government across elite law firms, and now in legal academia who by this time had been members of the Federalist Society for two decades, or who had come up through the Federalist Society on their law school campuses at an already well-established, well-funded student chapter and gotten connected and had a career pipeline because of their membership in this organization. And so what you see during the George W. Bush administration is a confluence of two things. The Federalist Society is an extremely powerful organization in its own way, and also Republicans, the GOP have power in the federal government.

0:49:56.3 Rhiannon: But the George W. Bush administration is the first to rely on the Federalist Society as an organization, as an advisor, an identifier for a majority of that administration's nominations to the federal appeals courts and the Supreme Court. George W. Bush over his presidency nominated 24 Federalist Society members to the Supreme Court and Federal Courts of appeal. So it's not just reliance on the organization as this advisor on judges, but the nominees own personal membership or involvement with the Federalist Society becomes a positive for judicial appointments. They're disclosing, yeah, I'm a member of the Federalist Society, because what Michael said, the Federalist Society had begun to establish itself as a screening mechanism, as a vetting process for judges. And you wear that as a badge of honor to say, "I am a tried and true and committed conservative."

0:50:53.6 Michael: Yeah. I found something in the congressional record from a 2001 hearing where someone was talking about the federal society screening process. And I was like, "Damn, that person, they got fucking foresight." But I don't remember who it was.

0:51:07.9 Peter: That member of Congress killed in a dark alley three weeks later.


0:51:12.8 Michael: So this is a notable time because up to this point, both parties had relied on the American Bar Association for part of the vetting process for any Supreme Court nominees. And the American Bar Association basically just tells you whether someone's a good lawyer, where they've done lots of work and whether they seem competent.

0:51:34.2 Peter: Are they qualified or are they not?

0:51:37.0 Rhiannon: Yeah.

0:51:37.8 Peter: That's basically what the ABA does for nominees.

0:51:40.0 Rhiannon: Yeah.

0:51:41.4 Michael: Conservatives are convinced this is, say nefarious liberal organization because as we discussed at the beginning of this episode, the law was dominated by liberals for a very long time. But this isn't a liberal organization in the sense that it seeks to ensconce liberal ideas in the law. And their ratings are not about whether or not your liberal or conservative. This was a problem though, because the way to get ahead in the conservative movement was not to be a good lawyer and be open-minded and think seriously about issues, it was to be committed to the conservative movement.

0:52:21.4 Michael: So they wanted to place people that the ABA would say were not qualified because they might not have the legal chops, but they do have the conservative commitment. And this was a big deal at the time. There were news stories run about it, all the major players commented on it and all that. And so now with the ABA in the rear view a little bit, the Bush administration turns to essentially the Federalist Society for guidance on its nominees. And the way it gets that guidance is through Leonard Leo, who technically takes a leave from the Federalist Society to maintain the organization's independence. But everybody understands he's there on behalf of the organization to place members of the organization in the federal judiciary.

0:53:11.2 Michael: In this role, he gets Bush to nominate John Roberts to the Supreme Court. At the same time, we start to see the limits of his power and the strength of the network overall with the Harriet Miers' nomination, which greatly displeased the rank and file of the Federalist Society who were not on board with it, and clashed with Leo, Leonard Leo, and with the Bush administration over it and won. Bush withdrew the nomination and replaced her with someone that the society members trusted in Sam Alito. And when Alito's nomination in turn started to hit the rocks, the federal society circled the wagons and published a bunch of op-eds and their partner organizations put out ads to shore up the vote and make sure he got on the court.

0:54:11.1 Rhiannon: Exactly.

0:54:13.1 Peter: So as Bush's tenure in office comes to an end, the organization is as powerful as it's ever been. In 2007, Bush, the sitting president speaks at an Annual Federalist Society dinner.

0:54:25.3 Michael: Which reminds me, Biden, if you want to come to our Harvard conference, we'd love to have you, talk to you about Israel Palestine.

0:54:33.1 Peter: He'll be there, he'll be there. So, I mean, that's a demonstration of how intertwined with the Bush administration they were. Once Obama is elected, the organization's focus has to shift. The president appoints federal judges, so the Federalist Society's ability to influence appointments is fairly nominal, especially because the Senate was very firmly in Democratic hands. But the organization effectively anticipated this. And in 2007, they established the state courts project, a project designed to target state supreme courts in the same way that they had targeted federal courts. And it's not just because they anticipate having less influence in the federal judiciary, it's because state courts are where a ton of law is made. They put $1.5 million into this effort, which was about 20% of their budget for that year. And from what we know, the project involved everything from monitoring developments in state law to strong-arming politicians.

0:55:31.1 Rhiannon: Quite literally. Yeah.

0:55:32.4 Peter: ProPublica reported that in 2007, the Republican governor of Missouri appointed a judge that was deemed insufficiently conservative against the recommendation of Federalist Society leadership. We talked to Andrea Bernstein who did that reporting, and here's how she describes what happened.

0:55:52.8 Andrea Bernstein: It was clear pretty early on, you can see it in Federalist Society documents where they talk about developing a state supreme court program. Leonard Leo is going around the country speaking about the state courts. He is indeed hosting debates about the role of the state courts. And it became clear that one of the states that they were focusing on was Missouri. Now, this was obvious from Federalist Society materials, but also because the JCN, this organization, this dark money group I saw, had started to spend money in Missouri.

0:56:29.4 Andrea Bernstein: And I began reporting in Missouri and I began talking to lawyers and former judges, and I said to them, "Did you hear anything about Leonard Leo being involved? Did you hear anything about the Federalist Society being involved?" And the response I got back was, "No, no, no." When I got closer and closer to people, I spoke to someone who worked on a campaign to try to prevent, if you will, the partisanization of the courts in Missouri. And then I became aware that there were some emails that Leonard Leo had written, and I had to call a lot of organizations. The emails had been produced as part of a 2008 lawsuit by a number of newspapers and the Associated Press, and I was able to get these emails thanks to the Associated Press.

0:57:19.9 Andrea Bernstein: And that's where I really understood the personal and aggressive involvement of Leonard Leo in trying to shape the composition of state courts, in this case in particular, Missouri. So while he was making polite genteel presentations around the country, he was sending very not polite emails. Like one in which he said to the governor that the fury of the conservative movement would come down. He transmitted this to the governor through his chief of staff. The fury of the conservative movement would come down on him if he didn't do as they wished in this particular court battle. And that to me was a real insight into the sort of public presentation that Leonard Leo gave and the private access game that he was playing at the same time.

0:58:13.4 Peter: Leonard Leo privately threatened to mobilize the conservative base against the governor and destroy his political career.

0:58:21.2 Michael: Right. That's wild on its own. But also, it's hard to remember that like Missouri is very right wing now, but in the early aughts it was considered one of the swing states, the swingiest swing states politically right down the middle. And if you won Missouri, you were winning the presidency. And like not that crazy for a conservative governor to maybe nominate a middle of the road judge. But no, they're not having any of that.

0:58:49.4 Peter: Yeah. I think that sort of highlights the difference between the Federalist societies public facing front, which is, we are a debate club. We'll advise the president about who's a good lawyer so he can nominate them to the courts. Behind the scenes they're strong arming governors. Right.

0:59:07.1 Rhiannon: Yeah.

0:59:07.9 Michael: Or the president in the case of Harriet Miers. Right?

0:59:10.7 Rhiannon: Yeah.

0:59:11.2 Peter: Right. So not only is the state court's project an investment in winning state court seats, it's a way of getting state and local actors to participate in a national project. Right? You had these different conservative players. You had state judges and politicians and bureaucrats on one hand, and then their federal counterparts on the other. And they were sort of operating in different spheres, state political parties didn't necessarily communicate super effectively with the National party, especially when you're just talking about lawyers. This project helped open up channels of communication and coordination between those groups.

0:59:49.3 Peter: So there are all these basic questions like, what's our position on this legal issue going to be? What judges should we appoint? The Federalist Society is establishing itself as the organization that answers those questions on behalf of conservative interests in the conservative base at every level of government. I think one thing to note is that this is an era from the Harriet Miers nomination onward. Where the Federalist Society is essentially running comms for the sort of like judicial side of the Republican party.

1:00:21.9 Michael: That's right.

1:00:22.8 Rhiannon: You can really see this kind of peeling back the mask, the organization working as the judicial side of the Republican party. You see this during the Obama administration when the Federalist Society is responding to legislation that's being passed that Republicans don't like. Take for example, Obamacare. Mitch McConnell in November, 2010 speaks to a Federalist Society conference and he begins his remarks by saying, "It really is true that this is one of my favorite organizations in the whole country." And this is a sitting senator. Right. It's pretty outrageous. His speech to a bunch of lawyers and judges is about trying to get Obamacare overturned in the courts. Of course this is back in 2010 and he says, "I know I can count on the support of the Federalist Society and helping us in our challenges to this affront."

1:01:20.7 Michael: Certainly, this is not a senator telling a Supreme Court justice how to rule.

1:01:26.1 Rhiannon: Or telling federal judges what to do. Right? Or all of the people who are at this event two days after his speech, the conference is still going on two days later, it's the big dinner event. Who is the keynote speaker at that dinner event? It is sitting Supreme Court Justice, Antonin Scalia.

1:01:47.2 Peter: Reports say that at the after party they kissed, but we cannot confirm that.


1:01:51.2 Rhiannon: They smooched right on the lips.

1:01:54.0 Michael: It's funny you mentioned Mitch McConnell. One of his favorite issues, his pet issues was campaign finance. This was his pet issue in the sense that like he hated campaign finance regulations. He wanted as much money in politics as possible. Like one of his favorite lines in like the '80s and '90s was to be like, "I don't know why people say there's too much money in politics. Americans spend more money on food than they do on politics." Yeah.

1:02:20.4 Peter: Do you want to live in a country where people spend more on food than politics?


1:02:24.9 Michael: The idea that the opposite would be true is insane. It's insane.

1:02:29.7 Rhiannon: Right. And then the opposite would be a good thing like what are you talking about.

1:02:34.2 Peter: Right. He was looking at the numbers and he's like, "What the fuck?"


1:02:37.9 Michael: I wanted to eat this week, but there's an election, so I'm just going to go without because fucking Marjorie Taylor Greene needs of my money.

1:02:47.7 Peter: My household budget is like, look, I've got 3000 to DoorDash, 10,000 to groceries. And of course 28,000 to various political campaigns across the country.

1:03:00.3 Michael: That's right. And so he blocked legislation on this for decades throughout the '80s and '90s. Huge opponent. Eventually John McCain, who is a big campaign finance guy, and Russ Feingold, who is a big lib write a bipartisan bill that sets a lot of tough limits on campaign finance. And McConnell hates it and the Federalist Society hates it because as we've discussed, the Federalist Society comes from these moneyed conservative interests who like spending money on politics. That's what they do. That's their thing. And that's what this organization has grown out of.

1:03:37.3 Michael: And so Citizens United is this case. We did an episode on that, folks, you should listen, but I'm sure you are all familiar with it. It's the case that essentially opened the money floodgates into politics. And it's not possible without John Roberts who the Federalist Society picked. And it's certainly not possible without Sam Alito, who the Federalist Society made sure got on the court in place of a squish like Harriet Miers who just might have blanched at this very radical ruling.

1:04:08.9 Michael: Right. This ruling where they were going beyond what was even asked by the plaintiffs in the case and striking down this legislation and opening up American politics to just a fire hose of billionaire cash. But this is great for federal society donors, it's great for federal society power players. And we know this because Leonard Leo and Ginni Thomas in anticipation of this decision started a pack. The type of pack that would benefit from this decision. They started it before the decision even came down. How did they know?

1:04:46.6 Peter: How did they know?

1:04:46.9 Michael: Who knows?

1:04:47.3 Peter: Crazy.


1:04:48.0 Michael: Papers filed by Cleta Mitchell, by the way, January 6th architect Cleta Mitchell, Trump attorney. Cleta Mitchell, currently not indicted, but fingers crossed and immediately they start getting money after this decision comes down. Right. And this is like part of Ginni's establishment as a power player in conservative politics as an activist, is this organization that benefited greatly from Citizens United.

1:05:15.9 Rhiannon: Yes.

1:05:16.4 Michael: And that was made possible by the Federal Society, Supreme Court nominees and was very amenable to their, rank and file and to their funders.

1:05:29.5 Peter: So that brings us up to about the Trump era and the point at which the Federalist Society really entered the public consciousness was in 2016 when Donald Trump announced that if elected his nominees would all be, "Picked by the Federalist Society." And that in a lot of ways is what set us on the path to the current moment. Trump followed through on his promise. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all career long Federalist Society members thoroughly vetted by and indebted to the conservative legal movement. But the turning point for the Federalist Society really came just before Trump's announcement, when Senate Republicans led by Mitch McConnell blocked Obama's nomination of Merrick Garland to the Supreme Court.

1:06:15.5 Rhiannon: Yes.

1:06:17.0 Peter: The Federalist Society itself didn't take a public position on the matter. Of course they would never, but its agents and allies were all heavily involved. Leonard Leo was working closely with Mitch McConnell behind the scenes, the Judicial Crisis Network, a dark Money fueled nonprofit started by Leo, whose offices are literally down the hall from the Federalist Society. Like same floor, launched a $7 million ad campaign opposed to seating Garland. This is all while the Federalist Society was working with Trump to finalize their list of potential nominees.

1:06:53.8 Peter: This is important not just in a vacuum, but because Trump's alliance with the Federalist Society helped get moderate and establishment Republicans on board with his candidacy by assuring them that he would be an ally on the courts. And he was with each of his picks selected from the Federalist Society's shortlist and each nomination supported by dark money from the Federalist Society's network of allies. And we've seen what that court has wrought. Right. You're probably listening to this because at some point in the last couple years you realize that the Supreme Court is largely occupied by psychopaths.

1:07:27.3 Rhiannon: Yep.

1:07:27.7 Peter: They've overturned Roe v. Wade, they've undermined the established modes of normal governance, slapping down COVID restrictions, blocking student loan forgiveness, expanding gun rights to preposterous places, all sorts of shit. Right. See every episode we've ever released for more.

1:07:48.8 Rhiannon: Exactly. Yeah.

1:07:50.7 Peter: It should go without saying that the history we've given here is a truncated history of how the Federalist Society got to where it is today. And so I want to sort of sum it up quickly, and it might not be apparent immediately why it's been so successful, even when you're sort of looking at all the steps and all the growth. If I wanted to sum up why I think the Federalist Society has been so successful, I would say that it has three pillars. One is their clear ideological mission, which provided them with a vision and a tangible set of goals.

1:08:23.8 Peter: Two is elite buy-in the degree to which elite conservatives from academics, to judges to politicians and wealthy donors bought into the project immediately and thoroughly and have continued to buy into the project to the present day. And the third is their collective sense of grievance and marginalization, which has energized them at every step from their founding until right now. Sam Alito spoke before the Federalist Society in 2020 and talked about how liberals are attacking conservatism in every area of the law. This is right after the super majority of conservatives was established on the court. Right. The sense of grievance and victimhood is what drives them...

1:09:14.9 Rhiannon: Right after the conservative president had lost by 7 million votes and aided by Federalist Society members was trying to overturn the results of that election. Right. And they're like, "We are under attack by liberals. They're like trying to end American democracy." It's incredible. It's incredible.

1:09:38.1 Rhiannon: Yeah.

1:09:42.5 Peter: So in Episode 2, we will talk about how the Federalist Society works from its network of students, lawyers, and judges to its network of dark money. And we're also going to dig a bit deeper into that psychology, the psychology of grievance that sort of moves them and energizes them and why that has been so important to their continued success.

1:10:02.4 Michael: How the most awful moralizing church lady took over American politics.


1:10:10.8 Peter: You can follow us on social media @fivefourpod. Subscribe to our Patreon for premium episodes, We'll see you next week.

1:10:22.4 Michael: Five to Four is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and this episode was fact checked by Arielle Swedback. Peter Murphy designed our website Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial relations.

1:10:55.0 Peter: ProPublica's the 1.5. TELUS is the overall budget number. The math I did using my brain.


1:11:05.3 Michael: Get at the microfiche baby. This is a 30-year-old New York Times article.