Politico’s Pre-Written Thesis about the Federalist Society Collides with Its Own Reporting

O ne of the saddest sights in journalism is when a writer goes to report on an event with a predetermined story line, puts in the time, can’t find evidence to support the narrative, and then writes the story anyway. There are some obvious tells in this sort of story, such as elevating marginal, unnamed figures at the event, lapsing into very rough paraphrases, speculating aloud about what the targets of the writer’s reportage must have been thinking, and padding out the column with lots of verbiage that doesn’t advance proof of the writer’s point.

All of these symptoms can be found in Ian Ward’s long, splashy Politico column on Friday about the Federalist Society’s National Student Symposium on “Law and Democracy.”

The National Student Symposium should be an easy event for a partisan opponent to caricature. FedSoc gatherings are full of quarrelsome people with eccentric opinions — these are politically engaged lawyers and law students attending debates, after all — so it is not hard to find a few of them with oddball views, especially among the law students and law professors. Indeed, the open-debate structure of the organization has always made room for people to argue for boutique academic theories with little or no prospect of ever becoming law. Yet Ward seems to have returned home from Austin, Texas, with barely enough notable quotations to justify his expense account.

Ward’s column is tendentiously titled “The Federalist Society Isn’t Quite Sure About Democracy Anymore,” which probably seemed like a good way to pitch the column to an editor before attending a series of debates on “Law and Democracy.” Many of the people sharing the column on social media do not seem to have felt the need to read past the headline — after all, the conclusion they want is right there, isn’t it? But what would support such a sweeping indictment of the organization and its members?

Fair-minded readers must work really, really hard to find support for Ward’s thesis in his column. The first sign of trouble is that you have to get eight paragraphs in before Ward outlines the argument he had meant to write: It “became alarmingly clear that, even among the buttoned-up young members of the Federalist Society — an organization not known for its political transgressiveness — the relationship between those two principles [of law and democracy] is far from settled. From radical new theories about election law to outlandish-seeming calls for a  ‘national divorce’ the symposium-goers were grappling with ideas that raised fundamental questions about American democracy — what it means, what it entails, and what, if anything, the conservative legal movement has to say about its apparent decline.” One would think that grappling with big ideas is the point of a symposium, but it gets worse from here.

There are six further paragraphs of filler before we get to the big reveal, from longtime FedSoc eminence Eugene Meyer: that judicial restraint and following the Constitution “can sometimes be in tension.”

Shocking stuff, I know. And it has nothing to do with some new, 21st-century hostility to democracy. The immediate issue is that sometimes, judges have to decide whether to follow precedents or the Constitution when they believe that the precedents got the law wrong. Given that judges make the precedents and the people made the Constitution, one would think that Meyer’s point underlines how much FedSoc-style originalists care about democracy, not how little.

The deeper issues are basics that lawyers learn in the first week of Con Law. The whole point of judicial review under a written, democratically adopted constitution is that both the constitution and the laws are the products of democracy — and the Constitution says that it is the supreme law of the land. It was written that way to reduce the deeper inherent tension between popular government and the protection of individual liberty, which for the Founding Fathers raised the concern (one that Ward attributes to UCLA law professor emeritus Daniel Lowenstein) of a tyranny of the majority.

The Founders aimed to cabin the tension between majoritarianism and civil liberties by writing down a list of the most important rights and putting them to a ratification vote. Under this system, the judiciary should not lightly disregard one democratic enactment, but it has a solemn duty to the people to enforce the law that the people made supreme. In the words of George Washington, “the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” I dunno, maybe that Washington guy sounds like somebody who would lead a revolution. Better keep an eye on him.

The one elected official Ward quotes in the piece is Greg Abbott, who comes off sounding the same notes as George Washington:

Abbott leaned into the conservative culture war rhetoric, telling the audience that he was on “a recruiting mission” to enlist young conservative lawyers in the fight against “the social justice warriors and the anti-constitutionalists” who are seeking to subvert the rule of law and undermine America’s constitutional order.  “Those who believe in the rule of law are outnumbered . . . but I believe we are still winning, because we are on the side of the righteousness,” Abbott thundered.

Alarmingly, we are told that this call to defend the Constitution and the rule of law received a standing ovation. Ward’s only on-the-record discussion with a named law-student attendee was with a young man going to work for the district attorney’s office in Tulsa who enthused about the role of local democracy in promoting public safety. He cites one attendee trolling protesters by noting, “I do support the First Amendment.” He ends the story with two men toasting “to America.” Really far-out stuff.

A discussion with law professor Josh Blackman produces fretting from Ward about the contrast between the Dobbs decision, which returned the abortion question to democratic legislatures, and the Bruen decision, which restricted the power of states to limit the right to bear arms. But this just underlines another Con Law 101 point: In deciding when the people meant their Constitution to limit the power of their own elected bodies, it pays to read what they wrote. They wrote a Second Amendment protecting a right to bear arms; they wrote nothing mentioning abortion, even vaguely.

The only specific area of law that Ward discusses in any detail in relation to the symposium is the pending Supreme Court case of Moore v. Harper, raising “the controversial independent state legislature theory, which posits that state legislatures should be allowed to exert broad control over the execution of federal elections.” The central question in Moore is whether to rule that state legislatures have more power over redistricting — and, potentially, other election-law issues — than do state judges. You have to work really hard to find hostility to the concept of democracy in empowering elected legislatures over courts.

Moreover, the only panelist whose take on Moore is even mentioned by Ward is Richard Pildes, an NYU law professor critical of the theory. Watch what Ward does next: “Even as the several panelists acknowledged the disruptive nature of the theory, none of them seemed eager to acknowledge that the four members of the Court who have flirted with the idea — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — all maintain close ties to the Federalist Society.”  So, the problem is that judges may do something that the FedSoc panelists were not eager to embrace — and this is a criticism of FedSoc?

This sort of thing recurs whenever Ward scavenges a meager crumb of what he considers extremism. “Behind me, somebody whispered, ‘We’re a republic, not a democracy’ — a tongue-in-cheek slogan that some conservatives have adopted as a way to slyly signal their approval of minority rule.” No, actually, it’s a basic civics lesson. Our mixed system of small-r republican government involves a complex array of checks and balances among the branches of federal and state governments, in which popular majorities need to build broad and durable support in order to get what they want. That can at times yield anti-majoritarian outcomes, but it has been part of the constitutional design since the Founding. Even the Pledge of Allegiance recites that our flag stands for a republic. This is not opposition to American democracy, it is how American democracy works, and always has.

Later, at the same panel, Ward notes that another unnamed attendee asked a question about “national divorce,” but that “on the dais, the panelists squirmed at the invocation of such pedestrian political ideas, and [Catholic University law professor Joel] Alicea offered some high-level philosophical objections to the idea that America should fracture into independent ideological entities.”

This is actually the story Ward ended up writing, against his will and against the thrust of his own headline: that Federalist Society gatherings remain a bulwark of constitutionalism — a locus of defense of government by the people through the mechanism of written law — even when that involves swimming against some currents on the right. So, “despite accusations from liberals that the Federalist Society is merely the eggheaded puppet of the Republican Party, many of the society’s members genuinely view themselves as independent-minded intellectuals.” So, “the society’s members are face to face with a troubling possibility: that most conservatives couldn’t care less about their high-minded principles, and, even worse, that many of their allies view their attachment to those principles as a quaint — and slightly embarrassing — relic.” Of course, in Ward’s telling, Federalist Society members can’t even admit to themselves that they don’t really believe in their own principles — but that is a conclusion Ward just pulls from his own preconceived ideas. He found nothing to support that argument in Austin. He just couldn’t quite admit that to his readers.