The Federalist Society, at the Summit and the Brink

The Federalist Society National Lawyers Convention wrapped up late Saturday afternoon. The convention reflects an organization at the pinnacle of its success, but dark times may lie ahead. There were hints throughout the three-day conference of some, but not all, of the reasons why.

For the Federalist Society, these are the best of times. The conceptual framework upon which the Society was founded — that courts should apply the Constitution and laws as originally written and understood — is so ascendant now in the American judiciary that even its enemies are compelled to speak its language and fight on its turf. Attendance was at an all-time high at the sold-out conference, which had to move the dinner to a bigger venue and was busting at the seams from its traditional home in Washington’s Mayflower Hotel. Many prominent federal and state jurists attend the convention and other Federalist Society events. The gala black-tie dinner featured a question-and-answer session with Supreme Court justice Amy Coney Barrett, attended by justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — and the most prominent originalist and textualist on the Court, Clarence Thomas, wasn’t even there. The conference continues to attract blue-chip sponsors among corporations and big law firms, as well as left-leaning academics, lawyers, and public officials who enjoy the intellectual debate and the opportunity to evangelize their particular views to an audience that is civil, thoughtful, and attentive. Joe Biden’s appointee to run the Federal Trade Commission, Lina Khan, was there to argue for her positions in terms of textual fidelity, defense readiness, and confrontation with China. I saw multiple liberal and center-left speakers note that this was their first Federalist Society convention.

The convention is also a prime location for debates within the Right — at least, among those willing and able to engage with fact and reason. Professors Will Baude and Michael McConnell debated whether Donald Trump should be ineligible for the presidency under Section Three of the 14th Amendment, with Baude taking the affirmative position (I take the negative view, although I was unpersuaded by Professor McConnell’s text-based view that courts may not even address the question until after Trump is elected). Professor Richard Epstein and Clark Neily of Cato debated whether the First Amendment permits government regulation of social-media-moderation policies (I again take the negative view, although I agree with both panelists that it is an entirely different story when that moderation comes at the insistence of the government). And there were opportunities to address threats from the left, such as a panel on ethics at the Supreme Court.

The most emotionally charged event of the convention came when Bari Weiss delivered the 23rd Barbara Olson Memorial Lecture, and brought the audience back to the atmosphere of the first, in 2001, after Olson’s death on the plane that hit the Pentagon. Weiss is neither a lawyer nor a conservative, and she was booked to give the speech before October 7, but the ghastly events of that day formed the backdrop of her bracing case that Western civilization still faces a murderous enemy, for whom antisemitism is just the canary in the coal mine. You could hear a pin drop when she talked about the Hamas atrocities, and she got a very lengthy standing ovation at the end of the speech:

That speech was reminiscent of the Federalist Society as it existed before Donald Trump. A somewhat darker view of how things have changed since then came from retired D.C. Circuit judge Thomas Griffith, who delivered a lecture in Robert Bork’s honor that covered the traditional old-time religion of the Federalist Society in favor of a modest judiciary that applies the law as written, but also warned of threats from the left to the legitimacy of the judiciary, threats from the right to the legitimacy of elections, the seductive danger of judicial activism from the right, and the need to recover the spirit of civility and compromise necessary to hold together a republic.

Therein lies where the Federalist Society, flush as it is with power, prestige, and membership, faces peril. In comparison to past years, there were notably few elected officials present (the only elected non-judge I saw on a panel was the Kentucky secretary of state, there to discuss elections administration). One would be hard-pressed to identify much in the way of pro-MAGA populist themes from the podium of any event, full as these were of odes to the rule of law. Unsurprisingly, given that the Federalist Society is formally non-partisan, there was no discussion of the looming electoral malpractice of Republicans nominating a 78-year-old Trump. Nor was there open discussion of the Trump camp’s recent threats to move on from Federalist Society lawyers in staffing the executive and judicial branches in the event of another Trump administration, in favor of people less scrupulous about the law and less strategic about trying to win cases in court. The threats to the organization are in no way separable from the threats to the rule of law itself. They will require the same sense of urgency that Weiss and Griffith brought to their lectures. And surmounting them may require more than simply winning the battle of elite-facing ideas such as the meaning of the written Constitution.