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The Federalist Society

How Conservatives Took the Law Back from Liberals

Michael Avery

Publication Year: 2013

Over the last thirty years, the Federal Society for Law and Public Policy Studies has grown from a small group of disaffected conservative law students into an organization with extraordinary influence over American law and politics. Although the organization is unknown to the average citizen, this group of intellectuals has managed to monopolize the selection of federal judges, take over the Department of Justice, and control legal policy in the White House.

Today the Society claims that 45,000 conservative lawyers and law students are involved in its activities. Four Supreme Court Justices--Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito--are current or former members. Every single federal judge appointed in the two Bush presidencies was either a Society member or approved by members. During the Bush years, young Federalist Society lawyers dominated the legal staffs of the Justice Department and other important government agencies.

The Society has lawyer chapters in every major city in the United States and student chapters in every accredited law school. Its membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, who differ with each other on significant issues, but who cooperate in advancing a broad conservative agenda.

How did this happen? How did this group of conservatives succeed in moving their theories into the mainstream of legal thought?

What is the range of positions of those associated with the Federalist Society in areas of legal and political controversy? The authors survey these stances in separate chapters on

regulation of business and private property;
race and gender discrimination and affirmative action;
personal sexual autonomy, including abortion and gay rights; and
American exceptionalism and international law.

Published by: Vanderbilt University Press


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pp. 1-3

Title Page

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pp. 4-7

Table of Contents

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pp. vii-viii

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pp. ix-x

This is a book about the power of ideas. The Federalist Society has been extremely effective over the past thirty years in translating the intellectual capital of its members into law and policy. We have traced the development of the ideas of society members from articles, books, panels, and debates into legislative proposals, citizen referenda, ...

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pp. 1-20

In 1980, Steven Calabresi, Lee Liberman [Otis], and David McIntosh were young, conservative law students—Calabresi at Yale, and Liberman and McIntosh at the University of Chicago—alienated from the prevailing political orientation of their classmates and their schools. ...

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1. The Network: The White House, The Department of Justice, and The Bench

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pp. 21-46

Since the early years of the Federalist Society in the 1980s, its members have believed that the easiest way to change the law is to change the judges. They have been phenomenally successful in doing so. The Federalist Society came into being at a catalytic moment for remaking the judiciary. ...

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2. Regulation of Private Property: The Takings Clause

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pp. 47-74

We now turn to ideological and constitutional law battles over government regulation of economic rights and private property. By “economic rights,” we mean the ability of property owners to use and develop private property as they see fit, or the ability of individuals and businesses to contract with each other ...

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3. Regulation of Private Property: Access to Justice

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pp. 75-98

In the last chapter, we described how Federalist Society members have attempted to use the takings clause to oppose regulation of private property. In this chapter, we explore a different strategy for combating regulation—limiting access to the courts. Over the past twenty-five years, conservatives have employed a variety of strategies ...

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4. Race and Gender Discrimination

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pp. 99-140

One of the most controversial legal issues with respect to race is whether government may take race into account to benefit minority groups that have traditionally been discriminated against. Historically, when civil rights lawyers litigated against racially discriminatory government policies, ...

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5. The Jurisprudence of Personal Sexual Autonomy

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pp. 141-169

It was the summer of 1969. Norma McCorvey, a twenty-one-year-old unskilled worker living in Texas, learned that she was pregnant. Single, unable to obtain an abortion in her home state, and unable to afford to travel to a state where she could procure one, she gave birth. ...

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6. American Exceptionalism, Sovereignty, and International Law

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pp. 170-202

In 2000, Peter Spiro described what he termed the “new sovereigntists” in Foreign Affairs. Acknowledging that the United States has historically been wary of participation in global governance, for fear of compromising its freedom of action, Spiro identified a growing band of influential conservatives ...

Appendix A: A Brief Guide to Legal Citations

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pp. 203-204

Appendix B: Federalist Society Members and Allies

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pp. 205-226


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pp. 227-282


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pp. 283-294

E-ISBN-13: 9780826518798
Print-ISBN-13: 9780826518774
Print-ISBN-10: 082651877X

Page Count: 304
Publication Year: 2013

OCLC Number: 828736825
MUSE Marc Record: Download for The Federalist Society

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Subject Headings

  • Federalist Society for Law & Public Policy Studies (U.S.).
  • Law -- Political aspects -- United States.
  • Judicial review -- United States.
  • Conservatism -- United States.
  • Liberalism -- United States.
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