Supreme Court Justice Clarence Thomas speaks during a conference of The Federalist Society in Lake Buena Vista, Florida, on January 31, 2020. | Stephen M. Dowell/Orlando Sentinel/Tribune News Service via Getty Images
All they do is win, win, win, no matter what. So why are America’s most powerful lawyers so unhappy?
William Pryor is chief judge of the United States Court of Appeals for the 11th Circuit. For nearly two decades, he’s ruled on which death row inmates will live and which will die in the states of Georgia, Alabama, and Florida. He’s overruled Cabinet secretaries and reshaped how entire states conduct their elections.
He’s also a very bad standup comedian.
On Thursday, Pryor gave the opening speech at the annual conference of the most powerful legal organization in the United States. But the bulk of the judge’s remarks to the Federalist Society was a Bill O’Reilly-style barrage of insult comedy, largely directed at left-leaning journalists who cover the federal judiciary. Sample joke: “No less an authority than [Slate’s Supreme Court reporter] Mark Joseph Stern — and really, is there less an authority?”
Chief Judge Pryor: “No less an authority than Mark Joseph Stern—and really, is there less an authority?—has explained: ‘FedSoc judges tend to hire FedSoc clerks … the radicalization machine produces an endless line of young lawyers even more extreme than their predecessors.’” pic.twitter.com/l1LrQtqcmC
— Mark Joseph Stern (@mjs_DC) November 10, 2022
It’s hard to imagine an event that better symbolizes the mix of power and pathos that underlies the Federalist Society than Pryor’s foray into insult comedy. Here is this eminence of the legal profession — a lifetime appointee speaking to an organization whose members dominate the federal judiciary, and especially the nation’s highest Court. And yet he can’t help but obsess over a handful of powerless scribes who write disparagingly about his friends in the society.
Ideas that begin with the Federalist Society frequently become Supreme Court opinions in just a few years. In the past, the society’s annual gathering has foreshadowed the destruction of US gun laws; the strangulation of the federal administrative state; and, in one of its increasingly rare high-profile failures, the attempted death of Obamacare. The five most conservative Supreme Court justices, four of whom attended the society’s annual black-tie dinner this year, are all enthusiastic supporters of the Federalist Society. I try to attend the Federalist Society’s conference every year, largely so that I’ll know what Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch will say in their future judicial opinions.
Yet this year was different. Indeed, it often felt like two conferences, neither of which offered much insight into the kind of world the Federalist Society’s most powerful acolytes will build for us in the coming years.
The first conference was largely a retrospective, looking back upon the impressive array of victories the conservative legal movement chalked up in the Supreme Court’s last term. Panels celebrated the death of Roe v. Wade and the gaping hole the Federalist Society’s justices tore into the wall separating church and state. The first day of the conference included three different panels touting the so-called “major questions doctrine,” a judicially created doctrine that gives the Court and its current Republican-appointed majority a virtually limitless veto power over federal regulations that they do not like.
As several conference attendees told me, the fact that so much of the conference was backward-looking — cheering past victories rather than planning for new ones — is hardly a sign that the society’s power is diminished. After a round of generational victories, it’s normal to pause for a moment and regroup before beginning a new offensive. For the moment, however, the conference offered only the narrowest window into where the Supreme Court might go next.
The second conference-within-a-conference emphasized the conservative legal movement’s cultural grievances. All four of the conference’s “showcase” panels — large sessions that were scheduled alongside no other events so that everyone could attend them — were a part of this. These four showcase panels emphasized complaints that Federalist Society conservatives often feel out of place at law schools, at large law firms, inside bar associations, and in the legal profession more broadly.
But the thing about these sorts of grievances — which frequently mirror broader conservative complaints about a so-called “cancel culture” — is that, even if you agree that such cultural complaints cry out for a solution, these are rarely the sort of problems that lawyers are capable of solving.
A conservative law student who is unpopular with their classmates cannot seek an injunction requiring their fellow students to like them. Nor should a conservative lawyer be able to successfully sue their colleagues for ostracizing them. The First Amendment places strict limits on the law’s ability to shape culture, and it simply isn’t possible for the government to force people to change their minds about anything.
There is also a very real tension between these two conferences, though the Federalist Society itself does not seem aware of it. If members of the Federalist Society feel isolated in their jobs or at their schools, they should consider that the policy victories their organization touted in its first conference drive many lawyers and law students to resent Federalist Society colleagues who celebrate those victories.
It is asking a lot, for example, for members of the society to expect to be welcomed with enthusiasm by their women colleagues — after the society’s justices just seized control of those women’s uteruses.
The Federalist Society craves acceptance from elite institutions
The Federalist Society knows how to hold a grudge.
In 1987, in a bipartisan 58-42 vote, the Senate voted to reject conservative Judge Robert Bork’s nomination to the Supreme Court. Thirty-five years later, the Federalist Society is still bitter. Indeed, this year’s convention concluded with an hourlong “Hon. Robert H. Bork Memorial Lecture,” in which federal appellate Judge A. Raymond Randolph compared Bork to Albert Einstein.
“One of the Democrats’ main attacks was that Judge Bork was out of the legal mainstream,” Randolph lamented, before claiming that attack “has no intellectual content,” that it “tells us nothing about truth,” and proclaiming that Einstein “was out of the scientific mainstream, and thank God he was.”
Randolph’s rage centered on the fact that Bork was judged not on the basis of his exceptional intellectual accomplishments, but instead on how his far-right political views would lead him to reshape the law (among many other things, Bork wrote in 1963 that federal legislation banning whites-only lunch counters is rooted in a “principle of unsurpassed ugliness”).
When Bork was up for confirmation, Randolph decried, “it didn’t matter that the Supreme Court had never reversed any of Bob’s judicial opinions.” Or that The Antitrust Paradox, a book authored by Bork, “had by that time defined the mainstream of antitrust law.”
Randolph’s defense of Bork was echoed by other Federalist Society speakers, including Northwestern University law professor John McGinnis, who railed against opponents of Bork’s confirmation who deemed the judge unfit for the Supreme Court despite the fact that he “had been Solicitor General of the United States, a professor at Yale Law School, and author of the most influential book on antitrust law in the history of the subject.”
Bork was, indeed, one of the conservative legal movement’s greatest intellects. He was one of the most significant — quite possibly the most significant — antitrust scholars in American history. The conservative legal movement sent America its best mind, and the Senate took one look at his conservatism and said “no thanks.”
The fact that the Federalist Society still seethes over this lost political fight, more than three decades later, is a microcosm for the need for respect and acceptance from elite institutions that animates so much of the society’s rhetoric.
In a showcase panel about “The Mission of Law Schools,” for example, Northwestern law professor Joshua Kleinfeld claimed that “cancellations” on law school campuses are “just the tip of a very, very, very big iceberg.” “Something momentous is happening,” Kleinfeld warned, which has destroyed law schools’ commitment to “open inquiry based on argument and evidence.”
And this culture has spread past law schools, at least according to the Federalist Society panel on the culture of large law firms. There, panelists complained that, as Supreme Court advocate Kannon Shanmugam put it, “there are two types of law firms: liberal and more liberal in terms of the makeup of the lawyers who work there.”
One frustrating thing about the conference, at least for an observer who does not share the society’s viewpoint, is that many of the speakers on these panels seemed to just assume that forces like “cancel culture” are serious problems and that there was no need to justify that claim. So it was often difficult to pin down what, exactly, had been done to these lawyers to spark their indignation, and what problem, exactly, they might want to solve. And when a few panelists did try to provide evidence for their broad claims, the evidence was quite thin.
Kleinfeld, for example, offered only two anecdotes to support his warnings of a giant iceberg, one of which didn’t even involve a law school. Specifically, he claimed that a single college freshman on an unnamed campus was harassed and stalked by his classmates after he expressed the view that women tend to have different career preferences than men for genetic reasons. And he also told a tale about an unnamed law professor at an unnamed law school, who allegedly was pressured to take early retirement after students falsely accused him of making racist statements in class.
Meanwhile, the task of quantifying large law firms’ excessive liberalism fell to former Solicitor General Paul Clement, who argued that, at least in the most high-profile, most politically charged cases heard by the Supreme Court, the nation’s largest law firms are reluctant to file amicus briefs on behalf of conservative political causes.
Clement researched the Supreme Court’s recent anti-abortion case Dobbs v. Jackson Women’s Health Organization (2022) and found that 24 of the nation’s 100 largest law firms filed amicus briefs on the pro-abortion side, while none of the 100 filed anti-abortion briefs. Similarly, in West Virginia v. EPA (2022), the case striking down part of the EPA’s ability to regulate power generation, Clement claimed that four of the nation’s largest firms filed a brief on the Biden administration’s side, while none supported the conservative movement’s position.
It’s worth acknowledging that large law firms are hardly the sort of employers where economically conservative lawyers — as opposed to socially conservative lawyers — will feel unwelcome. These firms, which typically charge hundreds of dollars an hour for even their most junior lawyers’ time, overwhelmingly serve wealthy individuals and corporations who do not want to be sued, taxed, or regulated. And an enormous amount of the work at these firms focuses on keeping these clients happy.
That said, I have little doubt that Kleinfeld, Shanmugam, and Clement are describing something real when they argue that cultural conservatives are in the minority within elite legal institutions. The reasons why, however, are hardly nefarious. They are largely driven by market forces, and by the political preferences of university students.
Young people overwhelmingly reject the Federalist Society’s values
In CNN’s exit polls of the 2022 election, voters with college degrees preferred Democrats over Republicans by 10 points. Voters under age 30 preferred Democrats by nearly 30 points. Admittedly, exit polls are often imperfect measures of public preferences, but various polls have shown that young people strongly favor Democrats since at least 2008. And one other indicator backs up the claim that college-educated young people are especially liberal: On many university campuses, Democrats ran up truly astounding margins in the most recent election.
I’ve been going through some of the college campus precincts this morning. This one at University of Michigan is indicative of why the work of youth organizing is so incredibly important. 93% voted for the Dem ticket. pic.twitter.com/iEJRdDSyai
— Tom Bonier (@tbonier) November 13, 2022
So, while Kleinfeld’s vague anecdotes about a single bullied student and a single retired professor tell us absolutely nothing about the culture of universities writ large, it is entirely believable that Kleinfeld and other conservatives on university campuses feel like they are part of an increasingly small minority.
And these trends impact employers no less than law schools.
The large law firms that Shanmugam and Clement spoke of at their panel are the sorts of firms that pay young associates outlandish amounts of money to work punishing hours for demanding clients. Many recent graduates enter these firms intending to leave as soon as their student loans are paid off. Others seek a few years of on-the-job training before moving on to more desirable work. At the most prestigious firms, only a tiny percentage of incoming associates make partner, and the rest are often pushed out the door if they do not leave voluntarily.
These firms’ business models, in other words, depend on a constant churn of young lawyers, recruited from an overwhelmingly left-leaning cohort of recent law graduates. To sustain this model, the biggest firms must compete with each other to build a work culture that will attract highly educated young people — a demographic that is heavily Democratic.
So there is a name for the force that is driving Big Law’s culture to the left — and the name of that force is “capitalism.” Successful employers build workplace cultures that will allow them to hire talented people and retain employees who perform well.
What, exactly, does the Federalist Society plan to do about its cultural grievances?
For all of the society’s fears that they are unwelcome in elite legal institutions, they had few ideas that are likely to quell these fears. Sometimes they were quite open about this fact. At the end of his presentation about large law firms, for example, Clement conceded that “I think the problem is pretty glaring,” but “the solutions are much harder to find.”
He’s certainly not wrong about that. What, exactly, would a policy solution to the supposed problem that Clement identifies look like? Should lawyers at large firms be forced to represent clients they find abhorrent, and to make arguments that they believe would deeply harm their country? Should state bar regulators impose quotas on these firms, and mandate that a certain percentage of their partners must have voted for Donald Trump? These are the kinds of solutions that, even if they survived scrutiny under the First Amendment, could only spark even deeper resentment against conservatives.
Similarly, what, exactly, should be done to change law schools? Should professors who teach from a left-leaning perspective be sanctioned or stripped of tenure? Or perhaps, fresh off the Supreme Court’s likely decision ending race-conscious affirmative action programs in university admissions, the Court could then mandate that law schools admit a critical mass of Republicans?
Changing culture is not easy, and people across the political spectrum who wish to shape an institution’s culture often struggle to make headway. The evidence on the effectiveness of the sort of workplace diversity trainings sometimes advocated by liberals, for example, is mixed at best. Universities and education policymakers have struggled for years to rein in the culture of sexual assault that exists on many campuses.
That said, there are definitely some figures within the Federalist Society who favor draconian measures to try to shift culture. At last year’s Federalist Society conference, speakers proposed an array of far-right solutions to what they described as the problem of “wokeness” in society — ranging from repealing the ban on discrimination on the basis of “race, sex, religion, and national origin,” to enacting laws requiring social media companies to publish speech they deem offensive, to a vague-but-ominous proposal to “wield in state legislative chambers some degree of power to punish our enemies within the confines of the rule of law.”
Meanwhile, a few of the Federalist Society’s most powerful supporters openly embrace the kind of censorship and intimidation of liberal voices that our First Amendment forbids. Florida Gov. Ron DeSantis (R), a frequent speaker at the society’s events, recently signed legislation imposing a speech code on public university professors. As a federal judge described the law in a decision striking it down, it “bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints” on various subjects relating to race, gender, and nationality.
Similarly, two of the Federalist Society’s justices, Thomas and Gorsuch, have called for the Court to overrule New York Times v. Sullivan (1964), a fundament of American press freedom, and arguably the single most important First Amendment decision in the Court’s history.
New York Times overturned a $500,000 verdict (just under $5 million in today’s dollars) that an Alabama court awarded to a Jim Crow official, ostensibly because the Times published a pro-civil rights advertisement that contained some minor factual errors. More broadly, New York Times ensured that public officials may not use malicious libel suits to target media outlets that criticize the government. Or who criticize officials like, say, Judge William Pryor.
So the Federalist Society’s most powerful figures have some tools which they could use to force liberal institutions to show more outward respect to conservative ideas. It is certainly possible for an authoritarian government to twist culture into the conservative movement’s preferred shape, and Thomas and Gorsuch have laid out the first step toward doing so: strip the media of its First Amendment protections. After that, maybe they could do the same to law schools and law firms as well.
But if the Federalist Society embraces some of these more aggressive policies, its members should not be surprised that the rest of the legal profession might resent them for it. Nor should they be surprised that so many lawyers, law professors, and law students resent them for what they have already done to American law.
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