The Federalist Society: How Conservatives Took the Law Back from Liberals

Introduction

Introduction 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 conservative critique or agenda has been formulated in this field. This conference will furnish an occasion for such a response to begin to be articulated.—Steven Calabresi, Lee Liberman, and David McIntosh, statement of purpose for “A Symposium on the Legal Ramifications of the New Federalism”1 You are more likely to convince people of your viewpoint if they feel the other side has been given a fair hearing.—Liberman and McIntosh, in an early Federalist Society guide on how to establish campus chapters2 I n 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. Their professors’ ideologies, for the most part, reflected the dominance of liberal politics in the sixties and seventies. The New Deal, the civil rights movement, and the Great Society antipoverty programs had led to widespread faith that government could and should supply the solutions to the country ’s social, political, and economic problems. Calabresi, Liberman, and McIntosh disagreed, believing that big government posed a fatal threat to individual rights and the sanctity of private property. In their view, the liberals had distorted important constitutional principles. The three law students started to raise questions. Over the next thirty years, the questions they and their conservative colleagues would raise identified many of the crucial issues of twentieth-century America. What is the appropriate balance between an individual’s right of self-determination and the powers and responsibilities of government? Should Americans pursue collective or individual solutions to social problems like poverty, care of the elderly, and education? How much regulation of private property and economic behavior is appropriate in a capitalist, free-market country? Is racial and gender diversity in education and employment an appropriate goal for government to pursue and what means are acceptable for achieving it? In the face of increasing economic and social globalization, what is more important—protecting national sovereignty or establishing international norms? Should judges interpret the U.S. Constitution to keep pace with the moral, economic, and social tenor of the times, or should they read the text in the light of its eighteenth-century meaning unless it has been formally amended? The law students not only began to ask these questions, they began to answer them. And they began to organize. Chief Justice John Roberts’s law clerk, George Hicks, described the conservative students at Harvard Law School in the early 1 eighties as “ideological outliers who struggled to gain credibility in class and acceptance on campus.”3 Soon enough, however, they got help from conservative professors who were themselves struggling with the prevailing liberal ideology of their colleagues. Professors Ralph K. Winter and Robert Bork helped Calabresi start the Federalist Society at Yale, and Professors Antonin Scalia, Richard Epstein, Richard Posner, and Frank Easterbrook were advisors to Liberman and McIntosh at Chicago. A couple of years earlier, Spencer Abraham and Steven Eberhard, students at Harvard Law School, had started the Harvard Journal of Law and Public Policy as a vehicle for conservative ideas. Eventually this would become the official law journal of the Federalist Society. The Federalist Society’s first major event was a symposium on federalism in April 1982. It was cosponsored by the Yale and Chicago law school groups, the Harvard Journal of Law and Public Policy, and a similar group at Stanford Law School, the Stanford Foundation for Law and Economic Policy. The Institute for Educational Affairs, the Olin Foundation, and the Intercollegiate Studies Institute funded the conference.4 The seminar was a huge success, and the Yale and Chicago law students soon began assisting conservatives on other campuses with the organization of their own Federalist Society chapters. At the time of the society’s inception , conservative law students felt isolated in an academic world dominated by a liberal mindset; the fledgling Federalist Society provided “a social club for students to come comfortably out of the political closet.”5 Within one year of the first symposium, there were seventeen Federalist Society chapters, all on law school campuses.6 The society grew continuously over the next several years. By 2000, former federal appellate judge Abner Mikva, a liberal, would...