The Federalist Society, part 3: The Spoils

The greatest trick the Devil ever pulled was convincing the world he didn’t exist. He learned it from the Federalist Society, by watching them steadily shift the terms on which all contemporary legal issues are argued. Now even progressive jurists feel compelled to debate the debate club on its own turf. The Devil is duly impressed. For more about what Fed Soc hath wrought, check out Amanda Hollis-Brusky's Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford University Press, 2019).

A podcast where we dissect and analyze the Supreme Court cases that have ruined our constitution, like construction noises ruining my week

0:00:00.0 Speaker 1: You should know I'm the single largest donor to the Federalist Society.

0:00:05.9 Speaker 2: Oh yeah. What do they do? Something with books.

0:00:09.8 Speaker 1: They control the courts, selecting judges all the way up to the Supreme Court with the President's blessing.

0:00:14.7 Rachel: Hey everyone, this isn't Leon from Fiasco and Prologue Projects. It's Rachel. I produced the show Leon's out this week. On this episode of 5-4. Peter, Rhiannon and Michael are bringing you the third installment of their four-part series on the Federalist Society. This week, they're talking about what FED SOC has achieved over the past four decades, because it's not just the fun lunches and the great guest speakers and the easy to use clerkship pipeline. It's not even just the defeat of Roe v. Wade or the deadly reframing of gun ownership as an individual right. As you'll hear, FED SOC has accomplished something even more profound by championing legal doctrines like originalism. The organization has shifted the way we talk about the Constitution entirely to the point where even liberal or progressive jurist now use FED SOC approved justifications to frame their arguments. This is 5-4, a podcast about how much the Supreme Court and the Federalist Society SOC.

0:01:17.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have ruined our Constitution, like construction noise is ruining my week. I'm Peter, I'm here with Michael.

0:01:27.8 Michael: Hey everybody.

0:01:29.6 Peter: And Rhiannon.

0:01:31.2 Rhiannon.: Hello.

0:01:32.3 Peter: It's still going guys. You know about this. Our listeners don't, but the apartment next to mine is being renovated, and from what I can gather, they're pulling out all the stops. I don't know, it appears to be just a full replacement of the entire structure, and it starts at what I guess is technically a legal hour, but as someone who likes to wake up at a Gentleman's 9:30. I don't personally enjoy it.

0:01:54.3 Rhiannon.: Wow.

0:01:56.8 Michael: That's tough.

0:01:58.6 Rhiannon.: The trials and tribulation of living life as Peter.

0:02:01.8 Michael: It's not easy being a stay at home podcaster.

0:02:03.7 Peter: It's not.

0:02:04.0 Michael: It's not.

0:02:04.3 Peter: People act like, "Oh, you have it so easy, why don't you try going to bed at 1:30 in the morning after watching three Kitchen Nightmares in a row, [laughter], and then being woken up by drills. [laughter] at 8:15."

0:02:22.2 Rhiannon.: Walk a mile in his Louboutins.

0:02:24.7 Peter: All right. We are at part three folks of our series on the Federalist Society. So we've walked through how the Federalist Society went from a small student group to a massive political powerhouse, and we've talked about how it operates, but today we are going to drill down into what the Federalist Society's impact on the law has been. Not just in the specifics like overturning Roe v. Wade, but how they participated in an effort by conservatives to reframe how we think about the law and how they built a legal infrastructure that is responsive to the demands of the conservative political movement.

0:03:00.6 Rhiannon.: Yeah. And just a little bit of a historical framework, something we've talked about in this series and on the podcast generally, our listeners have heard us say this many times, is how much of the modern conservative legal movement is a reaction to the civil rights era and the perception by conservatives that the Warren Court was sort of imposing its political will onto the country. And so in the '60s and '70s, conservative legal academics and judges, they're playing around with different critiques and theories. First, they start propagating the idea of judicial restraint. They think the Warren Court was out of control, and this is where the complaint about judicial activism as we understand it today, this is where that comes from. So these conservative legal academics were endorsing the idea that judges should just be doing less. They should be more restrained in their judging. And then in the early 1970s, Robert Bork, who of course would go on to be a prominent figure in the Federalist Society, starts developing the theory of originalism, which is of course the idea that we should be interpreting the Constitution as it was interpreted when it was written.

0:04:16.3 Peter: Sick idea.

0:04:16.5 Rhiannon.: Yeah.


0:04:21.4 Michael: But what's important to understand is that before the Federalist Society, a lot of these ideas were like they're half formed, they're in Kuwait. They don't really have anywhere to go because there isn't a network to diffuse them and funnel them upward out of academia and into real prominence.

0:04:45.8 Rhiannon.: Yeah.

0:04:45.9 Michael: Once the Federalist Society is established, that changes a couple of things. One, all of these academics and lawyers are being connected. Steven Calabresi, again, he's one of the Federalist Society Co-founders said, "Before we existed, there were a handful of conservative scholars, but they weren't in contact with each other." By bringing them together, putting them on debates and things, I think we've to some extent helped to bring together a homogenous, mature set of conclusions on things that people on the right agree on and how particular legal problems should be addressed. Homogenous. They all like to pretend like there's so much debate on the right or whatever.

0:05:32.0 Peter: Right.

0:05:32.6 Rhiannon.: Yeah.

0:05:33.4 Michael: But when they're being real, they're like yeah, we all think the same shit.

0:05:37.8 Rhiannon.: Yeah. Yeah.

0:05:37.9 Peter: Right. Right.

0:05:38.6 Michael: So not only are conservative legal scholars being connected, they're sort of developing an orthodoxy, right. Developing a consensus about what the law should be. The second big thing that happens is this network is bridging the gap between these conservative legal types and political actors. So you start to see these ideas manifesting in public policy. Ed Meese is a lawyer who was active early on in the Federalist Society, and he's also in Reagan's cabinet.

0:06:08.2 Rhiannon.: Convenient.

0:06:09.4 Michael: Yeah. In 1985, he becomes the Attorney General and quickly announces that the Department of Justice would be using originalism as its basis for interpreting the law. This is really like a big moment for the conservative movement. A few years prior, this has been a relatively fringe academic theory, and now is the official policy of the Department of Justice.

0:06:33.3 Rhiannon.: Can we stop there? It is crazy to me. Has any DOJ, has any Attorney General been like this doctrine is how we will be interpreting the Constitution moving forward?

0:06:46.9 Peter: Yeah. Joe Biden's, department of Justice uses communism as it's guide.

0:06:48.2 Rhiannon.: Oh yeah. I forgot about that. I forgot about that. No, but I just think... I really do think this speaks to like this is the piece that the Federalist Society did, right?

0:07:00.3 Michael: Yeah. It's wild.

0:07:00.9 Rhiannon.: Like the conservative legal movement was coming up with ideas, but it's the network, it's the structure, it's the connections that the Federalist Society was doing and making that then bridges that gap and brings the academic theories into now the DOJ is using this as policy. Right?

0:07:18.0 Peter: Right.

0:07:18.6 Michael: Right. Steven Teles, in his book, he says "The DC Federalist Society chapter is especially important because it's this sort of hub for conservative elites to coordinate their legal arguments."

0:07:32.8 Rhiannon.: Yeah.

0:07:33.9 Michael: So like lawyers across different agencies are now coordinating with each other, not to mention with law professors and judges.

0:07:43.2 Rhiannon.: Yeah.

0:07:44.6 Michael: Right. He talked about how if you were just some lawyer at an agency in like the Reagan or HW Bush administration, you weren't prior to like the Federalist Society going to be someone who was talking with other lawyers at other agencies, right?

0:07:58.5 Michael: Right.

0:07:58.6 Rhiannon.: Yeah. Right.

0:07:57.9 Peter: But all of a sudden you're at the Federalist Society lunch for the DC chapter. You're shaking hands with a bunch of people who are all part of this broader like political legal movement.

0:08:08.5 Rhiannon.: Exactly.

0:08:11.9 Peter: So we want to give some examples of how this infrastructure operates and how successful they've been at changing both the law itself and the frameworks we use for analyzing the law. And I think the best case study for this is the second amendment. So the Second Amendment says, "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." For most of the last century, that was widely understood as conferring what's called a collective right. Meaning it wasn't about the individual right to own guns. It was about the rights of state militias. That's why militias is in the amendment.

0:08:52.2 Michael: It's right there.

0:08:53.3 Rhiannon.: Yeah, Yeah, Yeah.

0:08:54.6 Michael: It leads off.

0:08:55.7 Peter: Right off the bat they're talking about militias.

0:09:00.0 Rhiannon.: Yeah. It does sort of pointedly include the word militia. Yeah...

0:09:01.5 Michael: Yeah.


0:09:01.8 Peter: So that's what the Supreme Court held back in the 1930s, and that was like the scholarly consensus. There was very little dissent on this point. And what changes first is not the scholarship, but the politics of gun rights in the mid '70s. There's like a rising chorus of conservatives who were advocating against gun control. Reagan is a rising star. He's writing op-eds for Guns and Ammo magazine about the Second Amendment right to bear arms in 1976, The Republican platform includes gun rights for the first time in history in '77, There's like a little infamous coup at the NRA where it's more moderate leadership is ousted and replaced by more radical gun rights activists.

0:09:50.4 Peter: And then when Reagan is elected president in 1980, he's very consciously aligning himself with the NRA for the first time.

0:09:56.4 Rhiannon.: Yes.

0:09:58.1 Peter: So as the Federalist Society is getting off the ground, you have this political movement developing behind gun rights that creates a demand for new scholarship, new arguments about the Second Amendment, claiming that it's actually about the individual right to own firearms, not just the rights of the state militia. It's becoming like a talking point in conservative circles. And in turn you have Federalist Society, lawyers and academics entertaining it, bringing it up at conferences, building consensus on what their theory of the Second Amendment should be.

0:10:32.8 Rhiannon.: Yeah.

0:10:33.3 Peter: Meanwhile, just to give you a sense of how new this line of argument is, former Chief Justice Warren Burger, a conservative is openly saying that this idea is fraudulent.

0:10:45.3 Rhiannon.: Yeah.

0:10:45.3 Michael: Yeah.

0:10:45.4 Speaker 2: This has been the subject of one of the greatest pieces of fraud. I repeat the word fraud on the American public by special interest groups than I have ever seen in my lifetime. If the militia, which was going to be the state army was gonna be well-regulated, why shouldn't 16 and 17 and 18 or any other age persons be regulated in the use of arms?

0:11:10.4 Peter: So in 1997, there was a big gun control case. Prince v United States makes its way to the Supreme Court, and Clarence Thomas in a concurrence basically says, "Hey, there's this theory floating around that the Second Amendment actually protects the individual right to bear arms." We should be thinking about that. Right?

0:11:26.6 Rhiannon.: Yeah.

0:11:27.3 Peter: So we talked in part two of this series about this like call and response from the courts to the academics, which is now possible because the Federalist Society has opened up channels of communications between right wing academics and judges. So like to be clear, Clarence Thomas is not actually interested in seeing more scholarships so that he can like make up his mind on the issue. Right?

0:11:51.3 Michael: Right.

0:11:51.4 Peter: He's already made up his mind. What he's doing is signaling to the Federalist Society and the conservative legal movement more broadly that he needs them to like develop their theories on this point a little more so that there's enough to rest a future Supreme Court decision on it.

0:12:07.1 Rhiannon.: Yeah.

0:12:08.2 Michael: Right, right.

0:12:08.3 Peter: And that's exactly what happens. Conservative scholars keep hammering away at this theory, and then in 2008 you get DC v Heller where Scalia writes a majority opinion that relies heavily on all of this scholarship and creates for the first time an individual constitutional right to own a firearm. So a couple of things to take away from this one is that you have that sort of dynamic where these channels of communication are being opened up between like the Federalist Society network and people in positions of power like Clarence Thomas, right? Like the justices on the Supreme Court who are part of the network themselves, and very open to hearing from everyone. Another thing happening is that you can kind of see the Federalist Society's function very clearly here. In the sense that the order of operations is not that, like people in the Federalist Society come up with new ideas and those sort of snowball and the order of operations is that the conservative political movement comes up with a demand.

0:13:11.3 Rhiannon.: Yeah.

0:13:11.6 Peter: Right?

0:13:12.4 Michael: Right.

0:13:13.2 Peter: We want gun rights, and the Federalist Society sort of caters to them. This is something we talked about in the last episode. The Federalist Society is a service provider to the conservative political movement. The political movement makes a demand. The Federalist Society provides the service. They're providing legal services to them. You can see this across other cases. Obamacare is a great example. We talked about this one too. When Obamacare gets passed, conservatives of course hate it. We talked about how Mitch McConnell went to the Federalist Society and was like, "Sure would be great."

0:13:46.5 Michael: If somebody just...

0:13:47.8 Peter: If someone could figure out how to strike that one down, huh? [laughter]

0:13:51.4 Michael: Yeah.

0:13:52.1 Rhiannon.: Yeah.

0:13:53.0 Michael: What would someone rid me of this troublesome law?

0:13:56.6 Rhiannon.: Right.

0:13:56.7 Peter: Right, right. Yeah. So they sort of concoct this theory that Obamacare violates the commerce clause that Congress is allowed to regulate interstate commerce, but for some reason insurance doesn't count for that.


0:14:11.5 Michael: Right. [laughter], no. Peter, you can't compel economic activity. Come on.

0:14:15.5 Peter: No. So they sort of brainstorm this stupid idea, and I was in law school when this was all happening, and I have a very vivid recollection of all of my professors being like this argument's gonna lose. It is so stupid.

0:14:30.3 Michael: It's trash. It's trash and it's gonna get crushed. Seven to nine votes easy.

0:14:36.3 Peter: Yeah Instead that argument wins.

0:14:38.2 Michael: Yes.


0:14:41.5 Peter: Obamacare does get upheld, but on separate grounds they lose the Commerce Clause argument. So what happened there again, you have a demand from the political side in that case literally Mitch McConnell.

0:14:52.4 Michael: Right.

0:14:52.5 Peter: And then that gets taken up by the Federalist Society. They provide the services to the political side. You see this in other situations citizens United. Right. You have wealthy elites who want to be able to freely move their money around parallel to elections. Federalist Society takes up the arguments, manifest to the Supreme Court. You can see this in other situations as well. Maybe the most visceral example of this dynamic is Trump v Hawaii, the Muslim ban case. Donald Trump of course, says, "I'm gonna ban Muslims from entering the country." Constitutional scholars were like well, "Sir, that is illegal."

0:15:28.1 Rhiannon.: We do have the First Amendment.

0:15:30.6 Michael: Yeah.

0:15:32.4 Peter: Right. Freedom of religion, but Federalist Society lawyers were there for Donald Trump in this moment of need. His solicitor general, Noel Francisco, very active within the Federalist Society, has spoken at Federalist Society events something like seven times in the last two years. Very active. Right? He argues this case for Donald Trump, and they make the argument that, "Hey, instead of banning Muslims, what if we just chose several of our least favorite Muslim countries and banned them? Is that okay?"

0:16:02.0 Michael: Yeah.


0:16:04.9 Peter: And the Supreme Court was like yes it is. That is great work. Noel Francisco [laughter] So you're seeing this same dynamic play out. There is a need coming from the conservative political movement that gets satisfied by the conservative legal movement. Right? The Federalist Society and its network steps in, and they provide those services to the political movement. So you can sort of see that service provider function playing out.

0:16:31.7 Michael: That's Right. While we're on the topic of the Second Amendment and Heller, there's something else that that's like very evocative of for me, and that is the degree to which like the Left has bought in to conservative framing and what is really like the Federalist Society's propaganda work. Because in descent you have Justice Stevens, who's a great justice, who I very much like and who's writing I enjoy.

0:17:00.2 Peter: Right.

0:17:00.9 Michael: And he's doing originalism, and he's saying, guess what? "Antonin Scalia, I can do Originalism better than You." He's answering a slightly different question about the intent of the drafters of the Second Amendment, but it doesn't really matter because what you end up with is this really obscure academic debate.

0:17:18.3 Peter: Yeah. About which type of originalism we should be doing. Right?

0:17:24.9 Rhiannon.: Right.

0:17:25.0 Michael: Right.

0:17:26.9 Peter: Rather than like this is all a bullshit project.

0:17:31.8 Michael: Right. Both sides of the debate are completely disconnected from the problem of gun violence in the District of Columbia at the time that this handgun ban was trying to address and has nothing to do with modern governance, nothing to do with the issues our government faces and the tools they can bring to bear to address those issues.

0:18:00.0 Peter: Right.

0:18:01.1 Michael: It's just crap.

0:18:03.3 Peter: Right. You have on one hand, John Paul Stevens being like, what would Thomas Jefferson say about all of this? And then on the other, you have Antonin Scalia who's arguing about like what the public would've thought about it. Right?

0:18:14.6 Michael: Right.

0:18:15.4 Peter: So it was just like Literally someone who's caked in horseshit from their day in the fields. What would that guy think about the Second Amendment? What are we even talking about here?

0:18:23.1 Michael: Right.

0:18:23.1 Rhiannon.: Yeah. What about a third thing, which is neither of those things fucking matters. That's it.

0:18:28.8 Peter: Right. One dude, dual wielding pistols could have wiped out the revolutionary Army. I've said it before and I'll say it again.


0:18:38.6 Rhiannon.: But liberals have bought into it and contributed to the success of originalism by being like, "Oh, well we can also do originalism." And it's all missing the forest for the trees, which is exactly what the conservative legal movement and the Federalist Society want to happen.

0:18:57.1 Peter: Right.

0:18:57.2 Michael: Right. The last thing they want is a compelling alternative vision for the law. Even if you get some wins, they are so happy for you to try to beat them at their own game with originalism, because that means you're not offering a liberal vision of the law.

0:19:10.0 Peter: Right.

0:19:12.5 Michael: And we're gonna be stuck with their chains around us, as long as that's true.

0:19:18.6 Peter: Yeah. We talked to Amanda Hollis Brusky professor at Pomona College about the success of the Federalist Society in pushing originalism to the point where like liberals were buying into, and here's what she had to say.

0:19:35.8 Rhiannon.: So the real metric, I think, of originalism success is the extent to which the left liberals, progressives on the court, or even in the legal academy, believe that they need to engage with originalist arguments on originalism terms. So it's not as if the left spends most of its time trying to debunk originalism. That happened at the beginning. You had William Brennan responding to Attorney General Ed Meese in the 1980s. Brennan called originalism, famously arrogance cloaked as humility. That there's no way we can ever know what the intentions or original meaning of the founding fathers were. So it's arrogant for us to pretend we could, and it's cloaked in humility because we claim that we're not drawing on our own subjective beliefs when we do originalism, that we're really putting our egos in the backseat and letting the founding fathers drive. But as Brennan said, that's bullshit. But the left has realized that there's some inherent appeal with originalism in that if not the founding father's beliefs, then who's? And that opens up the door to the critique that you liberal judges, if you're not embracing originalism, are just projecting your own political values, your own moral values onto the Constitution. And I think it's that critique that the left has really struggled to respond to.

0:21:00.6 Peter: So using the sort of channels opened up by the Federalist Society. The right has managed to bring us to a place where originalism is one of the dominant aspects of the court's jurisprudence, right? The Supreme Court will frequently either uphold or strike down a certain interpretation of the Constitution based on whether they think it fits within America's quote, history and tradition. That's an originalist test. This was like a central part of the reasoning and striking down Roe v. Wade in expanding gun rights in striking down affirmative action. And I think it's worth noting before we move on, that this is just completely arbitrary. There's no objective way to measure history and tradition.

0:21:42.7 Rhiannon.: Exactly.

0:21:44.3 Peter: So the entire analysis becomes a way for conservatives to justify their policy preferences. Just a... Thoroughly deep irony, considering the entire point of the project was ostensibly that we could avoid judges ruling based on their policy preferences. If you wanna see how that works out, check out our episode on Students for Fair admissions, the Harvard last year, the affirmative action case where Clarence Thomas gave this like tortured historical analysis in his concurrence. Now we've sort of come full circle. They arrive on the scene being like, we've got this new great objective way to interpret the law and now it's basically been adopted, including by liberal Supreme Court Justices. And where has that led us two... To conservatives doing whatever the fuck they want and pretending that they're somehow like rooting themselves in history, right?

0:22:35.0 Rhiannon.: Yeah.

0:22:36.1 Michael: What a surprise. The conservative Republican party platform just so happens to jive with the history and tradition of the United States. Updated every four years for the new Republican party platform.


0:22:50.5 Rhiannon.: You know what, this might be a good time for a break.

0:22:56.9 Michael: Yes.

0:23:00.1 Rhiannon.: Alright, so we are back. We have talked about some of the accomplishments of the Federalist Society, the accomplishment of really encouraging and the success of originalism. We have talked about some cases, major, major wins for the conservative legal movement at the Supreme Court. Let's talk about kind of a lay of the land where the organization is at today, because you really have to understand that in order to comprehend what it is they've accomplished so far, and the further threat to the law and the judiciary that the Federalist Society represents. So today, the Federalist Society boasts a revenue of $25 million a year from the Federalist Society website. It is an organization of 90,000 lawyers, law students, scholars, and other individuals who believe and trust that individual citizens can make the best choices for themselves and society. That's how they describe themselves.

0:23:57.2 Peter: I like how their little quote is just like baby's first conservative thought or something. Like high school civics level, like individual citizens can make the best choices for themselves in society. These are the people who are like exerting enormous control over the judiciary and they have the beliefs of a small child waving an American flag. That's what's happening here.

0:24:17.8 Rhiannon.: Well, and it's about the presentation of their beliefs. Everything they say and represent about themselves publicly is so hollow.

0:24:24.8 Peter: Yeah.

0:24:25.7 Rhiannon.: The term judicial restraint does not mean anything, even though they have weaponized it, the term individual choice. They're talking in this quote about making the best choices for themselves and society. Individual choice doesn't mean anything to y'all. What about reproductive choice? It's completely vague and the whole thing is just about laundering really quite radical conservative views into like a traditional center right approach to the law. Back to their accomplishments. Of course, we all know six out of nine Supreme Court justices are current or former members of the Federalist Society, 25% of the federal bench in the United States right now are Trump nominees judges who were nominated to the Federal bench by President Trump alone. And about 90% of those nominees were members of the Federalist Society at some point in their careers last year at the Annual Lawyers Convention that the Federalist Society puts on their keynote was Bari Weiss, who is a... If you don't know, a vapid clown who purports to care about sort of free speech absolutism and anti wokeness. She started her speech at FED SOC. So she started her speech by saying, "I first have to acknowledge that we're standing on the ancestral indigenous land of Leonard Leo. I read in ProPublica that this is his turf."


0:25:53.0 Rhiannon.: This joke doesn't even make sense. It's just taking a shot at indigenous people. This is fucking loser shit. This is who they have at their national convention. In 2022, the keynote at that lawyer's convention was law Professor Richard Epstein, who has written such books as the Dubious Morality of Modern Administrative Law and another book called Forbidden Grounds, the Case Against Employment Discrimination Laws.

0:26:18.1 Michael: Wait, if we're talking about Richard Epstein, we also have to mention that this is the guy who as a lawyer with no epidemiological background at all, wrote an article being like, COVID death will Max out. At like 1000 deaths. And it became very influential in the Trump administration. It shaped their response. And then as it was proven wrong, he kept editing it to being like, I meant 50,000.

0:26:45.2 Rhiannon.: Yeah.

0:26:45.2 Michael: I meant 100,000.


0:26:50.1 Peter: Well it turns out he's about as good at predicting COVID deaths as he is at understanding employment law.

0:26:54.6 Michael: That's right.

0:26:56.4 Rhiannon.: Yeah. These are the people they're platforming, these are the people they are inviting to speak as keynotes. Also, in 2022, the Federalist Society celebrated its 40th anniversary. Woo. At that dinner, four out of the five justices who had just that year overturned Roe v. Wade attended, those were Justices, Gorsuch, Kavanaugh Alito, and Barrett. Barrett and Alito both gave remarks at that dinner, Alito got a standing ovation. CBS news reported that he praised the Federalist Society for its success during the Trump years and hoped that it would continue. He said, "Boy, is your work needed today?" This is an organization where Supreme Court justices talk directly to that network and they are praised in return. They are getting standing ovations. During her remarks, justice Barrett said, "It's really nice to have a lot of noise made, not by protestors outside my house."

0:27:53.3 Michael: Yeah. If you thought that Amanda Hollis Brusky idea about the judicial audience was like abstract last episode.

0:28:03.3 Rhiannon.: Exactly.

0:28:03.4 Michael: No, it is like literally.

0:28:03.5 Peter: It's a literal audience in front of them.

0:28:05.8 Rhiannon.: Yes, exactly.

0:28:06.8 Michael: Clapping like fucking...

0:28:10.0 Rhiannon.: Seals.

0:28:10.5 Michael: I was gonna say Seals, but then I was like, do Seals clap? I can't remember which one it is.

0:28:16.5 Rhiannon.: Justice Alito hasn't just spoken that time at a Federalist Society event. He has spoken several times at that annual convention in Washington DC, so has Justice Thomas and so did Justice Scalia before he died. Gorsuch was there in 2017. Kavanaugh delivered remarks in 2019. And at the 2022 event post Dobbs, again, 15 federal appeals court judges chosen by Trump were slated to speak. Senator Mitch McConnell, big fan of the Federalist Society, also attended. So when we're talking about the success of the Federalist Society, it's hard to overstate the level of ascendance, the level of success that they have achieved. They are in direct communication with Supreme Court Justices transforming the law across the country.

0:29:02.5 Michael: Right. And we started this by reading off some numbers about what percentage of the judiciary were appointed by Trump and/or members of the Federalist Society, et cetera, et cetera. And you might be thinking, well, 25%, that's a big, but that's not a majority. It's not even close to a majority.

0:29:20.1 Peter: Right.

0:29:21.1 Michael: But here's the thing. The way our system works is that there are a lot of geographic circuits that are all sort of on equal footing, and each circuit decides the law for its little collection of states. And it just so happens that the Federalist Society has taken complete control of the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi. They have a super majority of extreme right wing ideologues. And on top of that, there are districts in Texas District courts where you are like 90% plus likely to get a Trump appointed judge.

0:30:09.0 Michael: And these judges are extremely right wing. Whether it's Matthew Kes Merrick or the George W. Bush appointee Reed O'Connor, who wants to take over immigration enforcement from the executive branch and personally oversee the border. This creates a glide path for conservatives to the Supreme Court. Anytime you want to throw some fucking crazy bullshit legal theory at the wall, you can just go into the Northern District of Texas, get a crazy judge, you will get a panel in the Fifth Circuit on Appeal. That is almost certainly going to be to the right of the Supreme Court. Even if you have the bad luck of getting a liberal panel or a moderate panel, the Fifth Circuit can always take it in bonk. We hear it with the entire circuit sitting.

0:30:58.7 Michael: As a result, this Supreme Court, this super conservative Supreme Court has had to be consistently disciplining the Fifth Circuit hearing emergency applications from them and turning them back over a dozen times. I think something like half of their emergency applications in the last year have been from the Fifth Circuit. It has the effect of pushing the law as far right as the Supreme Court will allow it. Because you can constantly get far right judges in the lower courts that will go much further than the Supreme Court likes, and then the Supreme Court has to reign them in to the extent they want to.

0:31:43.0 Peter: Yeah.

0:31:43.7 Michael: It is a very, very toxic dynamic that has taken over the judiciary.

0:31:49.6 Rhiannon.: Yeah. And just to give some color in terms of the connection between the Federalist Society and this rogue hyper conservative circuit Court of Appeals in the Fifth Circuit, there are for example, three cases. One about abortion medication... The Fifth Circuit delivered a conservative win in each of those cases. And in each of those cases, the judges that made up the majority are all affiliated with the Federalist Society.

0:32:28.0 Michael: All of this.

0:32:31.5 Rhiannon.: That's right.

0:32:33.2 Peter: We talked last episode about, how they're networks of judges operate. But what's really happening here is that they have created this standalone pipeline that can run any issue, no matter how far right the theory is up to the Supreme Court very quickly. You put it in front of the psychos in the Northern District of Texas, it gets appealed to the Fifth Circuit, put it in front of more psychos there, it gets appealed to the Supreme Court. Bang. You're in front of the conservative super majority. And yeah, you're not gonna win them all, but that's because they are swinging for the fences every fucking time. So it doesn't really matter. And just to sort of clarify, it's not just the Fifth Circuit that we're dealing with under Trump the 11th, 2nd and 3rd circuits all flipped to majority Republican. So a really large chunk of the federal appellate courts in this country are controlled by Republican nominees.

0:33:26.2 Michael: That's right.

0:33:27.7 Rhiannon.: And during the Trump years, the Federalist Society as an organization is really pretty openly victory lapping at this time. In 2017, Don McGahn, who was then White House counsel to Trump, said again at the Federalist Society Convention, "Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. That's completely false. I've been a member of the Federalist Society since law school still am. So frankly, it seems like it's been insourced.

0:34:00.5 Peter: Nice. Another banger joke from these folks.


0:34:00.5 Rhiannon.: Yeah.

0:34:01.5 Peter: There's a riot over at the Federalist Society Annual Conference. Also does not appear to know what insourcing actually is, but oh whatever. Let's go.


0:34:10.3 Rhiannon.: Yeah. So completely bragging. The criticism at this time is that Trump has outsourced his judicial nominations to this organization, the Federalist Society, that all of a sudden the American public is learning about. And yeah, they completely take ownership of that and say, "Yeah, that is what we're doing." At the 2022 conference in Washington DC Leonard Leo says, "Our movement has grown by leaps and bounds and so has our impact." William Pryor, who is the chief judge of the 11th Circuit, this is the man who wrote the opinion that said that, "People with felony convictions in Florida have to pay all fines and legal fees before they can regain their right to vote." This in effect, disenfranchised nearly 1 million people in Florida in a scheme that has been criticized, as a pay to vote system, a poll tax. This guy says sarcastically at the convention in 2022, that he's there to, "Investigate this mysterious and secretive network that critics charge have captured the federal judiciary, including the Supreme Court of the United States." These people have taken over the federal judiciary. They have taken over the Supreme Court. And they're laughing at you for saying it.

0:35:24.7 Michael: Yeah.

0:35:28.2 Peter: So we are at a point where the conservative political movement has entrenched itself within the legal profession, including within the judiciary. And we're also at a point where the conservative political movement is increasingly radical. The confluence of these two events, it's pretty dangerous. Not only do you have the rise of a movement that is increasingly fascist, anti-democratic, and conspiratorial, but you have a Federalist Society network capable of providing institutional support to that movement. And if we wanted to talk about a case study to illustrate how dangerous this confluence can be, I think the ideal candidate is January 6th. And luckily we have an in-house expert right here at 5-4.

0:36:13.7 Michael: That's right.


0:36:17.4 Michael: So January 6th, as you might recall, was not a random date or a random riot. It was the day of the counting of electoral votes. And it had a specific goal, which was to force Republican senators, congressmen, and Republican Vice President Mike Pence, to recognize the fake electoral votes that Donald Trump had put together to give him a sort of legalistic claim to remain in power despite losing the election. The groundwork for this was laid months in advance before the election even happened. We did a fucking episode about it in September. Right? 2020. It was happening out in the open. And it started with attacks on mail-in voting. You might remember mail-in voting was a big deal because it was in the middle of a pandemic, and there was not yet available a vaccine and people were dying in massive numbers. And while this was going on, Federalist Society lawyers were attacking mail-in voting. They were filing lawsuits, trying to prevent states from extending deadlines or defending states that did not want to extend their deadlines, trying to limit the access of citizens to mail-in ballots. Also during the runup to the election Hans von Spakovsky real person, not Bond villain.

0:37:51.8 Rhiannon.: I don't believe you, I don't believe you.


0:37:54.7 Peter: I know him very well. One eye plays the piano.

0:37:57.8 Michael: That's right.


0:38:00.0 Michael: Sorry. Always has a cat in his lap that he's petting.

0:38:03.5 Rhiannon.: And a special knife inside his jacket.

0:38:05.2 Michael: Yes.

0:38:05.3 Rhiannon.: That he talks about as if it's magical in some way. Yeah.

0:38:07.8 Michael: Right. This guy, longtime opponent of democracy, hater of people voting, did a tour of the Federalist Society. Because he's a longtime member of the Federalist Society, where he did nine different events delivering talks like, "Consequences of mail-in ballots." Which I would think would be people voting.

0:38:34.6 Rhiannon.: Right.

0:38:35.0 Michael: Right? That's the consequence, is people vote. "Election fraud 2020, fact or fiction."


0:38:43.2 Michael: Is so good.

0:38:43.9 Peter: What's the rule with headlines where if the headline asks a question, the answer is no. If a Federalist Society event ends with a fact or fiction, the answer is fiction.

0:38:52.0 Michael: Fiction. Absolutely, absolutely.

0:38:54.4 Rhiannon.: Yes.

0:38:55.5 Michael: But so he's warning that there will be chaos and litigation and it's like, you are laying the groundwork for chaos and litigation right now. You are building the consensus for this. So this is happening at the Federalist Society in the weeks leading up to the election. After the election, Ken Paxton, longtime Federalist Society member, laughably corrupt, criminally corrupt attorney general of Texas, asked the Supreme Court to throw out the electoral votes of Pennsylvania and three other swing states. Because this was one state suing another state, this was an original action in the Supreme Court.

0:39:37.5 Peter: Original jurisdiction.

0:39:38.8 Michael: Filed in the Supreme Court, asking them to essentially hold the trial to be like, "There was big time voter fraud with the mail-in ballots we got to throw them out" And they wanted John Roberts to do that.

0:39:51.3 Peter: Right.

0:39:51.4 Rhiannon.: Yeah. That was the legitimate argument they were making.

0:39:53.9 Michael: Right. 17 other attorneys general sign on to this lawsuit, 13 of them members of the Federalist Society. Now, this by no means is where the Federalist Society involvement in January 6 ends. If anything this is where it begins, because now we have the real legal challenges and this stuff is being headed up by Trump's team. Number one man there, John Eastman, you might know that name or might recognize him from his mugshot as he's currently under indictment. At the time he was the chairman of the Federalist Society's, Federalism and Separation of Powers Practice. He's the guy who originally came up with the independent state legislature theory, the legal theory that undergirded the January 6th riot and this whole attack on the electoral process. During this time he not only is he advising Trump, he's going to the state legislatures telling them to pick whatever electors they want. He's actively pressuring them to create the fake electoral ballots. He specifically advises Donald Trump to pressure Mike Pence to consider the fake electors. So I think we can give him a lot of credit for the Tang Mike Pence chance.

0:41:13.1 Peter: Right. Right.

0:41:14.2 Michael: I think he deserves like a lion's share of credit for the gallows. Remember, there were actual gallows.

0:41:20.8 Rhiannon.: Yeah.

0:41:20.9 Michael: They erected a fucking gallows to hang Mike Pence. Of course, last but not least, he spoke at the ellipse on January 6th and helped rile up the mob that went inside the Capitol. So that's John Eastman, again, not just a Federalist Society guy, one of the leaders of the Federalist Society. Outside of Trump's team in the Department of Justice was Jeffrey Clark, also leader in the Federalist Society at the time, chairman of their environmental and property rights practice group.

0:41:55.0 Peter: It just cracks me up that that's one group for them.

0:41:57.0 Michael: Yes. Well, what you're concerned about here is whether you have the rights to the oil under your legs.

0:42:01.0 Rhiannon.: Exactly.

0:42:01.8 Peter: Right, or like dumping oil into a beautiful street.

0:42:04.6 Michael: Right. That's right. So this guy, he was acting assistant attorney general and his bosses at the Department of Justice, which as a reminder, is supposed to be independent from the White House. They're not really on board with the whole fake electors scheme and so Clark just goes behind their back and works directly with Trump. He drafts this letter to send to several states being like, the DOJ has found evidence of fraud. So you might wanna get on that whole making separate slates of electors thing. His bosses are like, "Fucking cut it out, we're not sending this letter." Well he's like, "Just send it and Trump will do the rest, right?" Eastman is brought into Trump's orbit by Cleta Mitchell, you might remember that name from last episode. She set up the PAC for Ginni Thomas and Leonard Leo, long time Federalist Society member. She works in another think tank where all they do is try to suppress votes and wouldn't you know it? Hans von Spakovsky is on the board of that group. It's just all your favorites, all your Federalist Society favorites are here.

0:43:17.4 Peter: Yeah.

0:43:18.7 Michael: Of course, I don't want to say that everybody in this group suffered zero reputational harm within the Federalist Society. In fact, we do have one instance of someone having serious reputational harm within the Federalist Society, because of their publicly stated positions on January 6th. That's Steven Calabresi, co-founder of the Federalist Society, co-chairman of the board of the directors of the Federalist Society. A little unorthodox among conservatives because he kind of thinks January 6th was fucking crazy, he thinks the independent state legislature doctrine is stupid and wrong. And he thinks Donald Trump should be disqualified under the 14th Amendment for engaging in insurrection. And for that, the board of directors held a vote and told him he could no longer identify himself as a co-founder and co-chairman of the board of the Federalist Society.

0:44:16.6 Rhiannon.: Whoa.

0:44:17.4 Michael: When doing public interviews. So there's one person, one person had reputational harm the guy who was like January 6th was bad.

0:44:25.6 Peter: And they were like, "You're not one of us anymore."

0:44:26.5 Rhiannon.: Yeah, yeah.

0:44:27.3 Peter: By the way, I'm a little bit annoyed by how freely rich people, powerful people seem to be able to just like pretend that they are or are not the founder of something. Like a couple of years ago, I found out that Elon Musk wasn't the founder of Tesla, it's just like a title that he bought.

0:44:45.7 Michael: Yes.

0:44:46.0 Peter: And now the board of the Federalist Society just gets to be like, "You can't say you're a co-founder." It's like, but I am, that doesn't seem...

0:44:52.0 Rhiannon.: Yeah, but I did, I was the guy at Yale, I was the 2L at Yale, I did the conference. What are you talking?

0:44:58.0 Michael: I founded it.

0:45:00.4 Peter: Right. I just don't feel like this should be legal, I don't know what mechanism can stop it, but it just feels a little weird to me that like founder is just like a title that they can pass around, right?

0:45:10.0 Michael: Especially amongst these motherfuckers who act like the dictionary is their guiding light on everything. And then it's like, "Well, don't call yourself the founder." Motherfucker, he founded it, he founded it. Like, what are you...

0:45:23.6 Peter: Now, obviously, we're getting upset about the wrong things here.


0:45:27.7 Peter: I am just as, if not more upset about the coup.


0:45:32.8 Michael: That's right.


0:45:35.0 Michael: Now, the board of directors never sort of publicly stated why they censured Calabresi.

0:45:42.7 Peter: Right.

0:45:43.3 Michael: But, we can infer a few things, it happened just 10 days or so after he submitted an amicus brief to the Supreme Court arguing against the independent state legislature theory. Which again is the theory, the legal theory underlying January 6th. And also a few days after he published a letter in the Yale Daily News coming out in support of affirmative action, a letter in which he noted that the Federalist Society takes no official positions. But he took two big Lib official positions in public and then got censured like immediately.

0:46:22.8 Rhiannon.: That's right.

0:46:23.5 Michael: We also don't wanna give him too much credit because he has subsequently walked back his support of disqualifying Donald Trump under the 14th amendment. Because the conservative legal movement ultimately does not suffer heretics, on the big issues you gotta fall in line.

0:46:43.6 Rhiannon.: Yeah. That was a great rundown of January 6th and legal issues and monsters involved. But I was hearing your dogs the entire time.

0:46:53.5 Peter: What's going on with your dogs, Mike?

0:46:54.8 Michael: There's the coyote in the yard and until I go and yell at it, they are just gonna keep making those fucking noises.

0:47:01.6 Rhiannon.: Amazing.

0:47:03.4 Peter: So I think all of this discussion nicely frames up the question of what is next for the Federalist Society. Because it is a matter of debate, like much of the Republican establishment, they're sort of caught up in a tug of war between establishment Republican interests and the MAGA segment of the political base. A few months ago the New York Times published a piece about how Trump and his people are aiming to move away from the Federalist Society. Mostly because he felt they were insufficiently committed to his effort to initiate a coup in 2020.

0:47:38.9 Rhiannon.: Yeah.

0:47:40.0 Michael: That's right.

0:47:40.4 Peter: Again, several prominent members were pretty actively involved, but he didn't have total buy-in, it certainly didn't seem like a Supreme Court wanted to take the issue up. So Trump felt that this was insufficient fidelity to his cause.

0:47:56.7 Michael: For Trump, they needed to like take up Texas v Pennsylvania and rule in favor of Texas and throw out the votes.

0:48:03.0 Rhiannon.: Yeah, exactly.

0:48:03.6 Michael: That's what Trump wants.

0:48:04.6 Rhiannon.: That's the loyalty he was demanding.

0:48:06.3 Peter: Right. Someone like Kavanaugh will always be disappointing to Trump because, what he really wants is not someone who is a committed ideological conservative, but someone who is just completely in the bag for him.

0:48:19.8 Rhiannon.: Yeah.

0:48:19.9 Michael: That's right.

0:48:20.3 Peter: Right. Someone like Aileen Cannon the judge handling his trial in Florida, who's just a full-on hack who loves Trump.

0:48:27.9 Michael: On the defense team.

0:48:28.8 Peter: Right. So that's what Trump's looking for, right? So there's been some pontificating about where the Federalist Society goes next. Is this ongoing tension between the establishment and the MAGA faction going to fracture the group? Are they going to lose their grip on power in the midst of all of this? And I think the best way to understand what's going to happen is to think again about what the Federalist Society's function is. They are not an interest group, they are a service provider. They provide services to the conservative political movement.

0:49:04.5 Rhiannon.: Exactly.

0:49:05.7 Peter: Remember the story about gun rights. The Federalist Society didn't start out pontificating about gun rights, the political base demanded it and then the Federalist Society built the legal infrastructure to make it happen. Same thing happened with Obamacare, right? Same thing happened with voting rights, abortion rights, the political movement demands a legal argument, the Federalist Society provides it. That same calculus plays out over and over again, that is the core function of the Federalist Society.

0:49:37.7 Michael: Fashions of machine go brrr...

0:49:39.5 Rhiannon.: Chuck, chuck, chuck, chuck, chuck, chuck, chuck, chuck.


0:49:44.6 Rhiannon.: There was this idea, particularly right after Dobbs, right after the Supreme Court overturned Roe versus Wade, that the Federalist Society maybe didn't know what to do next because as an organization it had "Won."

0:50:00.8 Michael: Right.

0:50:01.3 Rhiannon.: Like it had achieved really the most prominent jurisprudential goal that it set out to achieve from the beginning in overturning Roe v. Wade. But this point about the Federalist Society being a service provider is really important to remember. The network will move according to whatever the conservative interests are, whether that is wealthy elites, corporations, whether that's a populist conservative base, whether that is a Trump administration. Wherever the conservative legal needs are, the Federalist Society is going to go. And they're not gonna stop at just overturning abortion rights, they're going to try to abolish the administrative state, abolish employment discrimination laws, overturn protections for contraception and other reproductive choice and bodily autonomy protections in the law. They will now be looking for more legal avenues to increase religious freedom, to discriminate and exclude people, to further disenfranchise voters.

0:51:03.8 Rhiannon.: They want to destroy the appellate process for people on death row, even if those people have serious claims that they were wrongly convicted. It goes on and on and on. They're not going to stop with Dobbs, because they have built themselves to be a service provider for conservatives.

0:51:20.0 Michael: They're never gonna run out of people that they want to demonize and brutalize, right? There will be immigrants, there will be transpeople and if they get everything they want from them, then they'll move on to gay people and they'll move on to religious minorities and on and on and on. They're not gonna run out of outgroups to be angry at and to oppress.

0:51:39.8 Peter: Yeah. So the question of what's next for them almost misses the point in my mind. What's next for the Federalist Society is whatever is next for the political movement that it serves. They will follow the demand, right?

0:51:53.8 Michael: Right.

0:51:54.4 Peter: And this is the benefit of a broad network. Even if there are moderates within this movement, these Steven Calabresi who don't wanna participate in this, it doesn't quite matter because there are plenty of people who do. And reactionaries in this country will continue to draw upon the network that they have built here.

0:52:13.5 Rhiannon.: Yeah.

0:52:13.6 Michael: Yeah.

0:52:14.0 Peter: I've seen more than one person say that the Federalist Society is sort of like the dog who caught the chow, Now they have so much control over American law. And I think that metaphor misses what's happening here. The Federalist Society has the rest of the country in their hand and they are just starting to squeeze.

0:52:32.6 Michael: Yeah. If you've ever seen some teenage Nazi with some anime avatar on Twitter posts like the most heinous shit you could possibly imagine, that's who's gonna be giving the Federalist Society marching orders in 10 years. So buckle up.


0:52:52.6 Peter: We wanna thank all the folks that we interviewed for this series, Steven Tellis, Vanessa AB, Molly Coleman, Amanda Hollis-Brusky, John Hansen, Nancy Gertner, all your time is much appreciated. We wanna thank our friends at People's Parity Projects for sponsoring this series. The final episode next week, a premium episode. We've talked about the history of the Federalist Society, we've talked about how it operates, what they've accomplished. It's time for the final leg of this race, which is how do we destroy it?

0:53:28.0 Michael: That's right.

0:53:29.5 Peter: How do you kill the Federalist Society metaphorically speaking?

0:53:32.4 Michael: How do we pile drive them into the fucking center of the earth?

0:53:35.7 Peter: That's right, metaphorically speaking.

0:53:37.5 Michael: Metaphorically speaking.

0:53:39.6 Peter: More people than usual listening to this, Michael, we've gotta be careful. Follow us on social media at fivefourpod. Subscribe to our Patreon,, all spelled out. For access to premium episodes, including the last episode of this series. As well as special events, access to our Slack, all sorts of shit. We'll see you next week.

0:54:05.3 Michael: Bye everybody.

0:54:05.7 Rhiannon.: Bye.

0:54:06.6 Michael: 5-4 is presented by Prologue Projects, Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan De Bruin, and this episode was fact-checked by REL Sweatback. Peter Murphy designed our website, Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

0:54:35.4 Peter: The dogs were barking so much that when it was actually happening I wasn't 100% convinced that it was dogs. I thought maybe it was like a sound glitch I was experiencing, 'cause it was so consistent.

0:54:47.0 Michael: 'Cause the coyote didn't go away, he didn't give a shit.