It’s been a big year for the Federalist Society. Dedicated to the belief that it is the duty of the judiciary to “say what the law is, not what it should be,” this network of conservative and libertarian lawyers, at some estimates over 70,000 individuals, has seen increased participation at alumni events, vibrant student chapters on law-school campuses around the country, and rising consumption of its publications and video content.
But what’s more remarkable is what the “citizen lawyers” trained up by the group have done outside its aegis. “Federalists” are now serving in significant numbers throughout our judiciary and in federal and state governments.
Leonard Leo knows this didn’t happen by chance. The longtime executive vice president of the Federalist Society has spent his career spotting and developing legal talent for public service. And he’s been a “citizen lawyer” himself, taking leaves of absence to advise Presidents Donald Trump and George W. Bush on their Supreme Court nominations.
Before his latest leave, Philanthropy met with Leo to hear more about the Federalist network, get his latest impressions on law-school ideology, and learn how this donor-funded charity with less than 50 staff could have such an outsized impact.
Q: What are the Federalist Society’s goals?
A: The Federalist Society was founded on the idea that there is an inextricable relationship between the structure of our Constitution, which ensures limits on government power, and the preservation of human freedom and personal responsibility. If we don’t protect the structural features of our Constitution—the separation of powers, federalism, checks and balances, and so forth—there is no freedom. You can have a bill of rights. You can have a charter of freedoms. But if you don’t have very discernible limitations on government power, and ways of enforcing those limits, those are just parchment barriers.
The idea behind the Federalist Society was to revive the idea that there needs to be a devotion to the structural Constitution as a means of preserving freedom over the long haul.
We’re educational—we are promoting this ideal in the legal community and in our nation’s law schools. The Federalist Society builds an infrastructure of talent around the country who can serve in positions of influence in law and public policy. It’s really a collection of individuals who are brought together by a common interest in, and devotion to, the Constitution.
We rely heavily on individual initiative and entrepreneurial spirit. We call it “citizen lawyers”—lawyers who are going to be active beyond their daily practices. That’s how we add value to society.
Q: How has the Federalist Society affected ideological diversity in law schools?
A: The Federalist Society’s presence now on almost every accredited law-school campus has had a discernible impact on the academic environment. First of all, the programming we do on campus provides education. It’s a university without walls. It’s a way of instilling in people an appreciation for principles they might not otherwise hear.
But it also puts pressure on law schools to at least cover some of that ground in the classroom. An active Federalist Society chapter signals to its host campus: “You have a choice. You can leave education regarding these principles and ideals to us, or you can deal with some of this in the classroom.” A smart, strategic law professor is not going to want to cede this territory completely to the Federalist Society. And so while we certainly do a lot of education outside the classroom, we’re also having impact on curriculums.
Q: What trends are you seeing in the ideology of law students right now?
A: If you look at law students today in comparison with law students from the ’60s through early ’80s, there are fewer today who are deeply committed to the collectivist, extreme liberal position about the role of law in society. The idea of law being a tool for social engineering—as opposed to a tool for the enhancement of freedom and personal responsibility—held sway much more monolithically back then.
There is today a greater skepticism about big institutions, which includes government. There is a greater willingness to question the standard line that a professor might offer in class. Law-school campuses are more open to the exchange of conservative and libertarian legal ideals, and talented people professing those ideals.
Mind you, the actual makeup of law-school faculties has not improved much. There are some law schools, including several of the very best, where there are more conservative and libertarian professors today than there were 20 or 25 years ago, but there is still not the kind of balance there should be.
Q: Why do you think that is?
A: Some of it is a legacy problem—law-school administration and hiring are dominated by legal scholars and academics who are pretty far to the left. We also have to encourage more conservatives and libertarians to consider becoming law professors. The recent economic downturn for law schools has slowed hiring, which means less opportunity to recruit young conservative and libertarian talent.
Q: What kind of donors support the Federalist Society?
A: The Federalist Society receives a great deal of support from wealth creators who understand that law is a crucial instrument for governing the affairs of individuals and businesses, for creating settled expectations, for protecting property, for allowing voluntary transactions, for instilling personal responsibility, for creating an environment where wealth creation and entrepreneurship can thrive. We are also supported by charitable foundations and philanthropic institutions that understand the relationship between the rule of law and national prosperity, growth, and security. And then there are many successful lawyers who are in a position to aid our work.
Q: What do donors expect of you in return for their financial gifts?
A: Donors want to see an increasing number of law students, lawyers, judges, and legal-policy officials embrace our principles. They want to see those principles applied in the world by individuals who reach public office, serve in the judiciary, volunteer for pro-bono activity, participate in media stories. They want to see active citizen lawyers who are prepared to defend our founding principles. That infrastructure of talent is our most valuable asset.
Our donors also want to see more balanced debate about the proper role of law in our society, and the important legal questions of the day. They want to see deeper, more thoughtful inquiry in the press. They want to see those topics infused in legal education. They want to see such principles debated on the floor of Congress or in state houses.
Our donors know that if you want to change laws, and transform legal culture, you need to identify talented people, educate them with time-tested ideas, give them tools for communicating and applying those ideals, and help them become leaders. That’s what we do.
You see the fruits of our work in the huge number of Federalists ascending the federal bench, occupying seats in the Senate and the House, serving in the executive branch, serving as state attorneys general and counsels to governors. These are people helping to transform the legal culture to one that respects limits on government power, and understands that it is the role of the law to facilitate freedom, prosperity, growth, and free markets.
There are parts of the country where it’s harder to build a network because of geography. In major cities there are high concentrations of lawyers. But in the heartland the legal community is more geographically dispersed. It requires more prospecting, more work, and more resources to reach these areas. But it’s important to have a presence everywhere. Judges decide important cases all over the country. Local prosecutors create new arguments. State legislators need legal guidance.
Q: Societal trust in government is pretty low today. Do people trust the judiciary more than the other branches of government? Should they?
A: None of the branches are trusted anywhere near as much as one would hope. But the judiciary is trusted somewhat more than the political branches. Now should it be?
The judicial branch is very scattershot. There are too many judges who don’t interpret the laws as written, who ignore traditional legal principles. But the genius of our Constitutional system is that there are ways to push back against that.
Throughout the history of western civilization many great people have fought for the rule of law, for limited government. That took us from a feudal society with highly centralized power to one based on individual freedom and responsibility. Thankfully previous generations didn’t give up, and they left us a great legacy. That ought to motivate all of us to do the same for our children and our grandchildren.
Back to Fall 2018 Briefly Noted
