If ever you wondered how important institutions were for changing the climate of ideas, the Chronicle of Higher Education released a cover article today, “How Conservatives Captured the Law,” that should settle the question. Written by Michael Avery and Danielle McLaughlin – she a Boston attorney, he a Suffolk University law professor and former president of the far left National Lawyers Guild, whom I’ve debated more than once – it’s a surprisingly dispassionate chronicle of the growth and influence of the Federalist Society over the past 30 years.
Cato, our outreach, and our Supreme Court Review come in for mention early on. And the Legal Studies Institute of The Fund for American Studies, in which I co‐teach, gets credit at the outset. But the main focus is understandably on the Federalist Society. Reflecting on its origins at the society’s 25th anniversary gala, Justice Antonin Scalia remarked, “We thought we were just planting a wildflower among the weeds of academic liberalism, and it turned out to be an oak.” It did indeed, with a membership today of more than 50,000 lawyers and law students, lawyer chapters in 75 cities, and student chapters in every accredited law school in the country, the society last year held nearly 2,000 events, including many involving Cato people.
The authors’ dispassionate account notwithstanding, it takes little imagination to see where they stand:
The Federalist Society’s membership includes many brilliant and sincere theorists who raise important and interesting issues. On the other hand, the society’s critics say, its overall impact is reactionary. By glorifying private property, demonizing government intervention (particularly at the federal level), insisting that originalism is the only legitimate method of constitutional interpretation, embracing American exceptionalism as a reason to remain apart from global governance, and pushing related policies, these critics say, the society advocates a form of social Darwinism that has been discredited by mainstream American legal thought since the 1930s.
Social Darwinism? That must be how Progressives see the eclectic group that speaks and debates through the Federalist Society’s auspices, because without so much as a beat in between, the authors continue:
Membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, many of whom disagree with one another on significant issues, but who cooperate in advancing a broad conservative agenda. They generally support individual rights and a free market, and prefer states’ rights to action by the federal government.
We do indeed, discrediting the “Darwinism” – the Hobbesian war of all against all – that is the product today of the jurisprudence of the 1930s. And in that cooperation there is a lesson. To be sure, we don’t always agree. But we agree on enough to be able to work together to get something done. Read the whole piece to see how much has been done.