Federalist Society

Federalist Society, American organization of strongly conservative and libertarian lawyers, judges, politicians, government officials, legal scholars, and law students, founded as a student association in 1982 and originally including members from the law schools of the University of Chicago, Yale University, and Harvard University. The society’s declared purpose is “to promote the principles that the state exists to preserve freedom, the separation of powers is central to our constitution, and that it is the duty of the judiciary to say what the law is, not what it should be.” It is generally recognized as the leading representative and vehicle of the conservative legal movement, whose goals since the 1970s have been to advance conservative legal scholarship and to shift the ideological balance of the American legal establishment to the right. Headquarters are in Washington, D.C.

The Federalist Society is dedicated to challenging what it calls “a form of orthodox liberal ideology” within the legal academy that “advocates a centralized and uniform society.” From its inception, the organization has championed conservative political values and legal principles, including the sanctity of private property and the free-enterprise system, federalism and states’ rights, limited government, freedom of religion, the right to bear arms, and freedom of speech. It has also played a major role in developing and promoting compatible techniques of constitutional and statutory interpretation—known as originalism and textualism, respectively—that supposedly prevent judicial misreadings of the law by emphasizing the public meanings of the words in which a constitutional or legal provision was expressed at the time it was written rather than the intentions of the provision’s drafters. Notably, the Federalist Society does not lobby for or endorse particular legislation, policies, or political candidates of either major party. Rather, through its many local and national conferences, symposia, and debates, the society provides a forum for articulating, refining, and defending conservative legal doctrines as well as a professional network for conservative lawyers in government service and private practice.

The Federalist Society benefited early on from the advice and participation of sympathetic law school faculty (including Antonin Scalia at the University of Chicago) and from generous funding by conservative donors and public-interest foundations and by corporations whose interests stood to be advanced by the wider acceptance of the society’s legal principles, especially regarding limits on the regulatory powers of government. The society grew quickly, establishing more than 150 student chapters in its first decade and adding separate divisions for lawyers and faculty by the end of the 1990s. In the early 21st century there were student chapters in more than 200 law schools and lawyers chapters in more than 100 cities. Total membership in the organization was estimated to be more than 70,000.

As the society’s membership grew, so too did its influence in academia, the judiciary, and public policy. Particularly noteworthy indicators of its success were its increasingly important role as a provider and unofficial vetter of candidates for appointment to the federal judiciary and the significant number of high-level government legal positions, particularly within the Justice Department, obtained by members and associates of the society under Republican administrations, beginning with that of Ronald Reagan (1981–89). During his presidential campaign in 2016 Donald Trump promised that, if elected, he would fill the seat on the Supreme Court left vacant by the death of Antonin Scalia (Senate Republicans had refused to vote on Pres. Barack Obama’s nomination of Merrick Garland as Scalia’s replacement) with a candidate chosen by the Federalist Society. By the end of his single term as president (2017–21), Trump had appointed three Supreme Court justices, each of whom was a current or former Federalist Society member. Among Trump’s numerous appellate- and district-court appointments, a large majority also had some ties to the organization.

Members of the Federalist Society have been responsible for the wider acceptance in the courts of conservative doctrines that the legal establishment had previously considered eccentric or ideologically extreme or that contradicted decades of judicial precedent. (Naturally, the success of such efforts has depended crucially on the presence on the federal bench of judges who themselves were members of or affiliated with the Federalist Society.) The organization’s most significant achievements in this regard are represented in various Supreme Court rulings since 2008 in cases that were crafted and shepherded through the appeals process and argued before the Court by lawyers affiliated with the Federalist Society. In District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), for example, the Court for the first time endorsed the “individual right” interpretation of the right to bear arms (a viewpoint that former chief justice Warren Burger described as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”). In Citizens United v. Federal Election Commission (2010), the Court accepted the Federalist Society’s expansive reading of the right to freedom of speech by ruling that corporate spending on independent political advertising could not be restricted by campaign finance laws. And in the Affordable Care Act cases, the Court declared a limit to the regulatory powers of Congress under the commerce clause by holding that the Affordable Care Act’s requirement that Americans obtain health insurance or pay a fine—the “individual mandate”—could not be construed as a regulation of commercial “activity.” (The Court nevertheless found the individual mandate to be constitutional under Congress’s taxing power.)