Six Myths About the Federalist Society, From Secret Lists to Party Orders

Somewhere out there is a person who believes that nine justices, several hundred judges and an entire political party take instructions from a group that holds law school panel discussions and sells box lunches. If that were true, it would be the most efficient conspiracy in history, and also the most boring.

The Federalist Society is one of the most discussed organizations in American law and one of the least understood. Supporters sometimes treat it as a mark of seriousness. Critics treat it as a mark of Cain. Both are working from a cartoon. Let me define the thing, then test six claims against the record, one at a time, and give a verdict on each.

What It Is

The Federalist Society for Law and Public Policy Studies was founded in 1982 by law students, including Steven Calabresi, Lee Liberman Otis and David McIntosh, at Yale, the University of Chicago and Harvard, who felt that the law school faculties they sat before leaned heavily in one direction. Its first event was a symposium at Yale in April 1982. It grew into a network of student chapters, lawyer chapters and a national conference every November.

The organization describes itself as a group of conservatives and libertarians interested in the current state of the legal order, and it states a set of founding principles: that the state exists to preserve freedom, that the separation of governmental powers is central to the Constitution, and that it is the province and duty of the judiciary to say what the law is, not what it should be. Notably, it says in its own materials that it does not take positions on legal or policy issues and does not endorse nominees, lobby or file briefs.

That is the standard to test the myths against. Either the organization acts the way it says it does, or it does not. Let us see.

Myth One: It Lobbies Congress and Files Briefs

The claim. The Federalist Society works the halls of Congress and files amicus briefs to steer cases.

The test. The organization is structured as an educational nonprofit, and its stated rule is that it takes no position on cases or legislation. What does that look like in practice? Look at what it produces. It hosts debates, publishes a journal and a set of practice-group newsletters, produces podcasts and video discussions, and holds an annual convention. Those are things a debating society does. A lobbying outfit has registered lobbyists, position papers on pending bills and a legislative agenda. The amicus filings in a Supreme Court docket are public, and you can read the list of filers in any case. Check it yourself: the briefs come from advocacy groups, trade associations, states and think tanks, and the organization's own rule says it is not among them.

The verdict. Mostly false. The organization does not lobby or file briefs. That does not mean its members never do. Individual lawyers who belong to it work for firms, think tanks and government offices that do file briefs. That is true of members of the American Bar Association, too, and of every bar association in the country. Membership in a professional community is not an instruction.

Myth Two: Members Vote as a Bloc

The claim. Judges and justices associated with the Society vote together on command.

The test. This one can be tested with cases. The most famous example is Bostock v. Clayton County (2020), in which the Court held that Title VII's ban on discrimination "because of sex" covers discrimination against gay and transgender employees. Justice Gorsuch wrote the majority opinion, on textualist grounds, and Justices Alito and Kavanaugh dissented, also on textualist grounds. Each of those three justices has been closely associated with conservative legal circles. They read the same words and reached different answers. We covered the textualist argument and the split among textualists in Bostock Was Written as Textualism, and Textualists Split Over It.

Other examples are not hard to find. In Ramos v. Louisiana (2020), a case about nonunanimous juries, Justice Gorsuch wrote for a majority joined in part by justices of different judicial philosophies, and the dissenters included conservative justices as well. We looked at that case in Ramos v. Louisiana and the Jim Crow Roots of Split-Jury Convictions. Justices appointed by Republican presidents have also been at odds with each other in cases about the commerce power, the scope of federal agencies and the reach of criminal statutes. A bloc that votes on command does not produce dissents from within.

The verdict. False. If you want a bloc, look at how often justices vote the way you would predict from the party of the appointing president. The correlation exists, and it is not a conspiracy. It reflects the fact that people with similar views about how to read legal texts tend to reach similar results, and that presidents of one party tend to choose judges who share a method. The better test is the exceptions, and there are many.

Myth Three: It Excludes Liberals From Its Panels

The claim. The Society's events are an echo chamber.

The test. The Society's model is debate. Its national convention features panels in which speakers on different sides of a question argue before an audience, and the format is explicitly designed to pair opposing views. Its student chapters routinely host faculty members and visiting speakers who disagree with the organization's premises, and the publicly available recordings of its programs include a long list of scholars from the political left. A visitor to its website can find the format described and can watch the discussions.

There is a reason for that design. The Society was founded in reaction to law schools in which students heard one set of views and little else. A group that began as a complaint about monocultures has an obvious interest in not becoming one.

The verdict. Mostly false. Its panels are built on the debate model, and the organization has made that a point of pride. Whether every individual panel is perfectly balanced is a question for the critics who attend them, and I would not claim perfection. But the central claim, that liberals are excluded, does not match the format.

Myth Four: It Writes the Nominee Lists

The claim. The Society gave a president a secret list of judges and a president picked from it.

The test. This is the most interesting claim, because it is half true, and the half that is true is not what critics say. In 2016, Donald Trump's presidential campaign published a list of eleven potential Supreme Court nominees, later expanded, and said he would choose from it. The list was released by the campaign. It was not secret. It was a public political document, designed to reassure conservative voters who doubted him. It was widely reported at the time that Leonard Leo, then an executive at the Federalist Society, advised the campaign on its contents, and that the Heritage Foundation also played a role.

Two things follow. First, a candidate publishing a list of names in advance of an election is the opposite of a secret; it invites the voters to hold him to it. Second, an individual advising a presidential candidate on whom to choose is not the organization taking a position, and the organization has said so. Whether you think that distinction is persuasive depends on how much weight you give to an official policy as against what its leaders do on their own time. I find the distinction real, though the overlap is also real, and no one should pretend a person's job title disappears when he walks into the Oval Office.

The verdict. Partly true, and mostly misdescribed. There was a list, advisers helped assemble it, and the Society's leaders were prominent among them. But the list was published by a campaign, the president made the choices, and the organization itself did not endorse any nominee. Presidents of both parties have used outside advisers to find nominees. Democratic presidents have drawn on groups and law-school networks that share their views.

Myth Five: Originalism Is Its Invention

The claim. The Society invented originalism to give a political movement a legal costume.

The test. Look at the dates. The idea that the Constitution should be read according to the meaning of its words when adopted is as old as the Constitution. Chief Justice Marshall's opinions in Marbury and McCulloch argue from the text and its purpose, not from the judge's preferences. Joseph Story's 1833 Commentaries on the Constitution says the same. During the Founding, Madison argued in the First Congress that the Constitution's meaning was to be discovered from the ratification debates and the understanding of the people who adopted it. What changed in the twentieth century was not the existence of the idea but its vigor, as a reaction to the Warren Court's willingness to find new rights in old words.

The modern revival is usually dated to the 1980s. Attorney General Edwin Meese gave a speech to the American Bar Association in July 1985 calling for a "jurisprudence of original intention," and Justice William Brennan answered him that October at Georgetown. We covered that debate in The 1985 Debate Between Edwin Meese and William Brennan That Revived Originalism. The Society's founding in 1982 was part of the same wave, and its members were among the early writers on the subject, but the Society did not create the idea, and the idea does not depend on the Society.

The verdict. False. The method is older than the republic's second century. The Society is one of several places where it was developed, taught and argued over. For the longer case for the method, see Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen.

Myth Six: It Gives Party Orders

The claim. A phone call from the Society tells judges how to rule.

The test. A claim like that predicts something specific: coordinated rulings, timed to the party's convenience. The record shows judges with Society ties reaching different results on the same legal question, as in Bostock, and writing sharp separate opinions against each other. It shows federal appeals courts in which judges appointed by the same president, and in some cases with similar affiliations, split on questions of statutory text. And it shows that the Court's conservative justices have disagreed over everything from qualified immunity to the doctrine of stare decisis to the Fourth Amendment.

There is also a structural reason the claim fails. A federal judge has life tenure under Article III. He cannot be fired for a ruling, and his salary cannot be cut. That is precisely the protection the Founders designed so that no one, including the person who nominated him, could give him orders. A judge who obeyed a phone call would be giving up the only thing the office offers.

The verdict. False. If anything is more embarrassing than the claim itself, it is the difficulty of finding a single case in which it can be demonstrated.

The Steelman, and the Fair Residue

The strongest version of the critique is not any of the six myths. It is a subtler point. A network that connects young conservative lawyers to mentors, clerkships and judgeships is influential, whatever it says in its mission statement. The same is true of the networks that connect young progressive lawyers to the same things. Influence exists whether or not anyone issues an order. The honest question is whether the influence is exercised in the open and through persuasion, and whether the people being persuaded are free to disagree.

On that question, I would say that the record looks like what one expects of a professional community: members who share a method, argue about its application and sometimes reach opposite answers. That is not a cabal. It is also not nothing. The right response to an influential network is to ask what it asks of its members and what it asks of the public, and then to compare the answers to what it does. In this case the answers match more often than the legend suggests.

If you want to understand how judges and the justice system fit into the larger design, read Seven Myths About the Roberts Court, Tested Against Its Own Opinions, which tests a related set of claims about the Court itself, and the courts page for current resources.

The case in brief

1. The Federalist Society is an educational nonprofit and debating society, founded by law students in 1982, whose stated rule is that it takes no positions on cases or legislation.
2. Claims that it lobbies, files briefs, controls votes or issues orders do not survive a look at its structure and at cases like Bostock, in which judges drawn from the same legal world reached opposite results.
3. Its panels are built on a debate model, and the 2016 candidate list was published by a campaign, not secretly produced by the Society.
4. Originalism is older than the Society by two centuries, and the 1985 Meese-Brennan debate shows the revival was a broad movement.
5. The fair worry is influence through professional networks, which every side has, and the answer is to ask whether the influence is open and whether members are free to disagree.

What you can do: choose one claim about any legal organization, left or right, that you have heard repeated, and check it against the group's own public materials and a primary source before you pass it along.