On Saturday, political science academics Amanda Hollis-Brusky and Calvin TerBeek wrote an exposé in Politico revealing that the Federalist Society, an association of conservative and libertarian lawyers infamous for forming a semi-official pipeline of right-wing academics into the federal court system, have deliberately misled the public about the purpose of their organization’s existence for years.
“Despite what appears to be an obvious political valence, the Federalist Society and its high-profile members have long insisted the nonprofit organization does not endorse any political party ‘or engage in other forms of political advocacy,’ as its website says,” they wrote. “The society does not deny an ideology — it calls itself a ‘group of conservatives and libertarians’ — but it maintains that it is simply ‘about ideas,’ not legislation, politicians or policy positions.”
“Federalist Society documents that one of us recently unearthed, however, make this position untenable going forward,” they continued. “The documents, made public here for the first time, show that the society not only has held explicit ideological goals since its infancy in the early 1980s, but sought to apply those ideological goals to legal policy and political issues through the group’s roundtables, symposia and conferences.”
The newly discovered papers resided in the Library of Congress with the records of the late Judge Robert Bork, President Ronald Reagan’s failed Supreme Court nominee. In one private grant proposal to a prospective conservative donor in 1984, for example, Federalist Society President Eugene Meyer promised that the Federalist Society would promote “the formation of groups of conservative lawyers in the major centers for the practice of law, who feel comfortable believing in, and advocating, conservative positions.” He also suggested the group would advocate against environmental, banking, and employment regulation, and recommend judges for appointments.
All of this could have significant consequences. Earlier this year, the Code of Conduct for United States Judges was modified to prohibit judges from participating in conferences held by groups “generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.”
In light of these documents explicitly revealing the political goals of the Federalist Society, that means that sitting judges may be in violation of the Code if they attend Federalist Society seminars — something conservative judges at all levels of the court system do routinely to exchange ideas and proposals. (The Code is not binding on the Supreme Court, but is on appeals and district court judges.)
For his part, Meyer disputes all of this, calling this interpretation of the Code “absurd,” and stating that it is “silly” to treat these documents “as a serious source for what the Society is and does today.”
“If the new advisory opinion is enforced, one can imagine the society or a federal judge suing on the grounds of free speech and freedom of association,” concluded Hollis-Brusky TerBeek. “And, as a testament to its success, the Federalist Society might get a sympathetic hearing from the very same judiciary it helped build.”