Early in the 1980s, a few conservative law students — primarily from Yale and Chicago, with a few from Harvard and Stanford — banded together to challenge what they saw as the liberal orthodoxy then prevailing in the law. Alienated from many of their professors and fellow students, they sought to establish a network to disseminate their view of constitutional principles. The organization they founded, the Federalist Society, has grown into a significant force in the conservative legal movement. 

The law students who founded the society, as well as the law professors and lawyers who participate in its events and write for its publications, are among the most well known and effective advocates of originalism. This theory, popularized largely by Justice Antonin Scalia, claims that the only “honest” way to interpret the Constitution is to read the words as, when and by whom they were written (property-owning white men only, of course). The founding Federalists are also the architects of efforts to roll back reproductive rights, equal opportunity in education and the workplace, voting rights action, protections of civil liberties and much more. 

As president of what some call the progressive counterpart to the Federalists, I was eager to read Michael Avery and Danielle McLaughlin’s The Federalist Society: How Conservatives Took the Law Back From Liberals. The authors open with a brief history of the society’s founding. Notably, the fledgling organization almost immediately began receiving significant support from both foundations and the political elite. Its young leaders soon found themselves in influential positions in the Reagan administration, particularly in Ed Meese’s Justice Department, where they were able to advance their vision of the Constitution and how it should be applied.

The authors then describe the areas of the law where Federalist Society members have played the most significant role. For lay readers, this section may be the most interesting. For example, Federalists have been central in attacking civil rights laws, including arguing that, in constitutional terms, “Jim Crow” laws are essentially equivalent to affirmative action. Early challenges to discriminatory government policies contended that decisions should not be based on race and that members of minority groups should be treated as individuals under the law. Later, however, civil rights advocates came to believe that it would be impossible to eradicate the vestiges of racism and slavery without recourse to affirmative policies. Universities and public employers adopted affirmative-action plans to add diversity to their student bodies and work forces and to remedy the lingering effects of past discrimination.

Conservatives latched on to the language of race neutrality to decry all affirmative action programs, with great success. The authors show how the Supreme Court adopted society members’ arguments to limit the use of affirmative action. Federalist Society supporters also mounted public-relations efforts to discredit “reverse discrimination.”  Perhaps most meaningfully, they have successfully stacked the courts with like-minded judges; the authors note that “Every single federal judge appointed by President George H.W. Bush or President George W. Bush was either a member or approved by members of the society.” Society members may see a complete victory this term when the Supreme Court decides Fisher v. University of Texas, looking at whether race can still play a role in the admissions policies of public universities.

Mitt Romney advanced these sentiments in bitter post-election comments that attributed his loss to “the gifts” President Obama allegedly bestowed on minorities and young supporters. Romney’s statement echoed Clint Bolick, an architect of the right’s strategy and frequent speaker at Federalist Society conferences, who has described affirmative action as “government’s power … to confer enormous tribute upon its beneficiaries.” 

The Affordable Care Act litigation also demonstrates how those associated with the Federalist Society have changed the direction of the law. When libertarian law professor Randy Barnett, once a Federalist Society faculty adviser, first proposed challenging the individual mandate as beyond Congress’s powers under the Commerce Clause, many experts scoffed. Barnett persevered, publishing widely, speaking everywhere and appearing regularly on television.  Ultimately he galvanized many state attorneys general and conservative organizations such as the Chamber of Commerce and National Federation of Independent Businesses to adopt his approach. Despite over 75 years of case law affirming Congress’s authority to pass laws regulating commerce, Barnett and his colleagues persuaded a majority of the Supreme Court that Congress could not require Americans to purchase a product. Although the court found that the act was valid under Congress’s “taxing Power,” Barnett’s arguments may prove very damaging to future efforts to regulate on behalf of Americans.

Not only do the authors helpfully describe the society’s theories — along with the strategies the conservative legal movement devised to advance them — but they critique those theories in terms accessible to lay readers.  From the regulation of private property, race and gender discrimination and sexual autonomy, to American exceptionalism, sovereignty and international law, the authors present both the Federalists’ arguments and thoughtful commentary on the flaws in those approaches. 

Some readers, however, may be disappointed that the authors do not spend more time describing the how, in addition to the who, what and why of the Federalist Society’s work. We get a thorough description of cases the Federalists has sought to overturn — Roe v. Wade chief among them — and who is involved, but we learn less about how the Society has actually achieved its successes. The authors chose not to interview people for the book, instead relying exclusively on the public record, including publications, live and recorded programs, and other materials. 

Given my position running the American Constitution Society, I may be more interested than others in understanding what went on behind the scenes and how the Federalists proved so successful. But this is a small quibble with an otherwise illuminating and important book that I hope will help engage liberals in a discussion of how we can reclaim the law from the right and learn from its unfortunate successes.

Caroline Fredrickson is president of the American Constitution Society, one of the nation’s leading progressive legal organizations, with a rapidly growing network of lawyers, law students, scholars, judges, policymakers and individual citizens. 

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