THE FEDERALIST Society is the nation's leading forum for conservative and libertarian thinking about the law and its impact on public policy. Its members include Supreme Court justices, law school professors, and more than 40,000 practicing attorneys and law students nationwide.
Yet in many precincts on the left, the organization has been regarded as a mysterious and somewhat sinister right-wing cabal. Democratic Senator Richard Durbin of Illinois, for example, warns that "membership in the Federalist Society" and its "secret handshake" have become the keys to the judicial kingdom.The Federalist Society, thundered The Nation in 2001, "benefits big business, it's anti-egalitarian, it shuts plaintiffs like the poor and disabled out of the courts." Its members "lack compassion, working to support favorite sons like gun manufacturers and HMOs." (Actually, the Federalist Society does not bring lawsuits and never takes stands on political issues.)
After President Bush nominated John Roberts to the Supreme Court two years ago, The
That suspicion came in for some razzing here last week, when the Federalist Society marked its 25th anniversary with a black-tie gala in the capital's vast Union Station. Master of ceremonies Theodore Olson, the former solicitor general, congratulated the 1,800 guests on having made their way to an "intimate, clandestine gathering of the secretive Federalist Society."
Supreme Court Justice Samuel Alito recalled the early 1980s, when members of the Washington, D.C., chapter would meet over lunch at a local Chinese restaurant.
At the first meeting he attended, Alito said, he was greeted by a colleague who remarked sheepishly: "This is like meeting someone at a bordello."
Those bordello days are a distant memory now. The guest list at Union Station was a who's who of the conservative legal establishment. On hand were senators, judges, legal scholars, former attorneys general - but also such liberal lions as Judge Stephen Reinhardt of the Ninth Circuit US Court of Appeals and Nadine Strossen, president of the American Civil Liberties Union. The dinner speakers included President Bush and not one but three Supreme Court justices - Alito, Antonin Scalia, and Clarence Thomas. (I attended the event as a guest of the law firm of McCarter English.)
The Federalist Society got its start at Yale Law School in 1982, when a handful of conservative law students banded together to challenge the prevailing liberal orthodoxy on campus. The group's second chapter formed at the University of Chicago, where its faculty adviser - the future Justice Scalia - had no inkling of the success that was to come.
"I never imagined that there would be a chapter at every major law school in America," Scalia told the Union Station audience. "We thought we had planted a wildflower in the weeds of academic liberalism. Instead it was an oak."
The Federalist Society's remarkable growth and impact attests to the power of its ideas - above all, that the state exists to preserve freedom, that limited government and separated powers are essential to American constitutional democracy, and that judges have a duty to interpret the law, not invent it.
The organization flexes its muscle not through lobbying or endorsing judicial nominees, but through something even more potent: standing for principles and defending them in open and robust debate.
"There was a time when we thought that intellectual ferment was on the left and the right was brain-dead. The Federalist Society played a major role in reversing that assumption," says Walter Dellinger, a Duke University law professor who headed the Office of Legal Counsel and was acting solicitor general during the Clinton administration. It is one of a slew of testimonials that appear at the Federalist Society website, most of them from luminaries on the left.
At a time when so much of what passes for public discourse is poisonous and extreme, the Federalist Society's commitment to fostering dialogue and intellectual diversity is a priceless resource.
"The ultimate good desired is better reached by free trade in ideas," Oliver Wendell Holmes observed. "The best test of truth is the power of the thought to get itself accepted in the competition of the market." Perhaps the reason so many liberals persist in bad-mouthing the Federalist Society is that they fear Holmes was right.
Jeff Jacoby's e-mail address is [email protected].