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July 10, 2023
Strict Scrutiny
How the Federalist Society Took Over

In This Episode

We’re kicking off the Strict Scrutiny Summer Reading List with a wild ride through the history of the Federalist Society. Amanda Hollis-Brusky, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution and Separate But Faithful: The Christian Right’s Radical Struggle to Transform Law & Legal Culture, joins Melissa and Leah to guide the journey.

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TRANSCRIPT

 

Leah Litman [AD]

 

Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it where your hosts. I’m Melissa Murray.

 

Leah Litman And I’m Leah Litman. We are delighted to be joined today by Professor Amanda Hollis-Brusky, professor of politics at Pomona College and chair of the Politics Department. We are not going to ask you how realistic that chair the series on Netflix is, so don’t worry about that. But at Pomona, Professor Hollis-Brusky has won the Whig Distinguished Teaching Award. She is also an editor at the Monkey Cage Blog at the Washington Post. Welcome to the show, Amanda.

 

Amanda Hollis-Brusky Thank you for having me. I’m so excited to be here.

 

Melissa Murray Well, we’re excited to have you. I also want to know, is the Monkey Cage blog something that you saw at Harlan Crow’s house or is that just like a completely different.

 

Amanda Hollis-Brusky Yeah. If, just just picture hagrid’s hut but similar in dimensions. Just, you know, slightly different.

 

Melissa Murray But and with monkeys. I love that.

 

Amanda Hollis-Brusky With monkeys. Yeah.

 

Melissa Murray As our listeners know, while the courts away, we spend time edifying ourselves. So we dive into some great summer reading that really helps individuals understand and contextualize the court in the legal culture in which it’s operating. And we are very excited about all of the entries on the Strict Scrutiny 2023 summer reading list, but we are especially excited about your entries, Amanda.

 

Leah Litman Amanda is here today to discuss her two must read books that are really essential for understanding the Supreme Court and a lot of the important legal culture that surrounds it. Those books are one ideas with consequences The Federalist Society and the Conservative Counterrevolution, which won the American Political Science Association’s C Hermann Pritchett Award for the best book on law and Courts.

 

Melissa Murray And not to be outdone by that, Amanda is also the coauthor with Professor Joshua Wilson of the recently published Separate But Faithful The Christian Right’s Radical Struggle to Transform Law and Legal Culture, which builds on a study they conducted with funding from the National Science Foundation, the title of the books, as well as the well-deserved recognition they received, make pretty clear why the books are must reads for people who want to understand the current Supreme Court. And we’re going to discuss both books today. But I think we should start with ideas, with consequences, because doesn’t everything start with Leonard Leo’s to do list? I think so, yes?

 

Leah Litman I mean, it is hard to count the number of requests we’ve gotten for doing an episode on the Federalist Society. And Amanda, you literally wrote the book on it. So we are delighted to be able to do this.

 

Amanda Hollis-Brusky Yeah. And I didn’t set out to become an expert on the conservative legal movement. I sat out because I was interested in ideas that have consequences for constitutional law and development. And it just so happened the way that politics and history have unfolded that now I am an expert on the conservative legal movement.

 

Melissa Murray Yay.

 

Amanda Hollis-Brusky Yay.

 

Leah Litman I feel like this is one of those rare instances where maybe an academic wishes their work were slightly less relevant or topical. I don’t know. I don’t want to put words in your mouth.

 

Amanda Hollis-Brusky No. And I talk about this in the introduction to the paperback edition, which I wrote as an update after Trump was elected. So the book came out in 2015. The Future, which I envisioned in 2015, looked like Hillary Clinton was going to become president of the United States, that she would fill not only Justice Scalia’s vacant seat, but maybe get one or two more nominations to the court, and the federal society would become an interesting study in kind of intellectual history, constitutional history, but more or less would be relegated to academic curiosity. And of course, the future looked very different after the 2016 election. So writing that updated preface felt really poignant because, as you mentioned, the Federal Society, after it co-branded itself with the Trump administration, was sort of launched into the spotlight. Leonard Leo is launched into the spotlight and now.

 

Melissa Murray Launched into the main real estate market.

 

Amanda Hollis-Brusky Into the real estate market. Apparently there was you know, he was launched into some field with some benefactors at some point and a painting. But, you know, he was launched into many places where he’s been quite influential and the federal society has been extraordinarily successful.

 

Melissa Murray Well, with that in mind, I’ll give the readers a little breakdown. Ideas with Consequences is divided into a series of chapters that use certain areas of law, like the Second Amendment or corporate political expenditures or federalism to do a thick description, an analysis of what the Federalist Society actually does. And hint it’s not just about debating.

 

Leah Litman In the later chapters, you provide a synthesis of some of what the Federal Society Network does, and you say, among other things. It shaped the content, direction and character of constitutional revolutions by supporting, developing and diffusing intellectual capital to Supreme Court’s decision makers and also helped foster the conditions that help facilitate a conservative constitutional revolution. So could you elaborate some of these dynamics and the case study, as you discuss in the book or based on things you’ve observed since writing the book, you know, that kind of bolster this analysis?

 

Amanda Hollis-Brusky So as you’re describing that, Leah, I’m reminded that ideas was reviewed twice in the Wall Street Journal, and most recently it was reviewed. The reviewer said the book, while a solid contribution, he found it to be jarringly academic. And as you’re kind of reciting my findings there, I thought to myself, that does sound jarringly academic, but it’s important to note, you know, Ideas is an academic book. It grows out of my dissertation work at Berkeley. Oh, yeah. Go bears see my bear territory sign behind me. And the goal really was to understand how an organization like the Federal Society, which exists outside of the courts in large part has been so successful in shaping the conservative counterrevolution. And and just to kind of take a step back, I think it’s important to note that I’m a political scientist. And unlike Congress, for example, the judiciary is different. You can’t openly lobby the judiciary in the same way you tell Congress. Right? So so the fundamental.

 

Melissa Murray Do you have a yacht. Do you have a yacht, Amanda? Because you could. If you had a yacht.

 

Amanda Hollis-Brusky I need a PJ. That’s what I really need is the means to get on my private jet. So I was attracted to this question because the federal society obviously had had its fingerprints on a number of key decisions of the conservative counterrevolution. But I wanted to understand how what were the mechanisms by which that happened, How did it gain access and what kinds of decisions has it been most influential? So again, unlike Congress, we’re talking about lobbying the judiciary and the courts are different because they don’t just vote, right? They don’t just say five, four, yes, we’re going to erase abortion rights because we have deemed it So They have to write a written opinion. They have to justify that power in terms of the law, in terms of the Constitution. And because of that, it opens the door for organizations that say there are debating society or let’s just say their society of ideas to feed those ideas to the justices who are ready and willing to kind of move the law radically or revolutionary. They can’t just rely on their old precedent when they’re rewriting the Second Amendment. They have to defend that. And Scalia’s opinion and Heller is one of the ones I examine where he’s drawing from the Federal Society Network, and he’s drawing on that outside what I call intellectual capital to justify, you know, reinterpreting the Second Amendment from a collective right to an individual right. So it’s those kinds of case studies and that kind of process tracing that I’m going through in painstaking detail, in ideas with consequences to show, you know, these justices, they don’t wear their sponsorship like NASCAR’s. And yet, if you know.

 

That would be amazing if the justices walked out onto the bench with like a little armband or emblazoned black robe that said paid for by Harlan Crow. Right. Or right, like Leonard Leo Society Class of Blank.

 

Melissa Murray Or they could just wear a boat polo shirt.

 

Amanda Hollis-Brusky Right. A monogram polo. Exactly. And and so in order to detect that kind of sponsorship. Right. The intellectual sponsorship, I trace these ideas and how they move through Federal society network members. And as you know, they don’t publish their membership list. So I was looking at who participates. I was gathering a database of frequent or repeat players within the federal society and all that. How when you step back, you get to see just how their if you want to say their NASCAR sponsorship or their fingerprints are really all over these decisions. And so that’s one of the ways I argue an idea is that they’ve been quite influential.

 

Leah Litman So maybe we can go through some of the different mechanisms that you identify for how the Federalist Society drove this counter revolution, because one of the functions you identify in the book is acting as an audience or creating an audience to keep judges and justices in line. And in fact, you’ve got some pretty revealing quotes by members of the Federalist Society saying this is partially what the Federalist Society does. So you have a quote from Professor Stephen Calabrese, one of the co-founders of the Federalist Society, who said the federal society has absolutely help keep justices in check. So why was that an important function for the Federalist Society to pursue? And how does their existence affect the constraints or influences on federal judges or justices?

 

Amanda Hollis-Brusky Yeah, So I think this is really one of the key aspects of the Federal Society network, not just getting judges and justices on the bench, which, as we’ve seen, they’ve been extraordinarily successful in doing that. But once those judges and justices are on the bench, what mechanisms exist to hold them accountable? And I use Larry Baum’s concept of judicial audience, which is judges are people, too. And people seek approval from kind of reference groups, people whose opinion they value, whose friendship or professional connections they value. And as I was talking to founding members of the Federal Society, as Steve Calabrese in particular, but he wasn’t alone. His idea for the federal society was to create a conservative counter elite, to create what Baum calls a judicial audience and a legal audience for conservative elites who wouldn’t feel like once they got to Washington, they had to seek approval from the, quote, Georgetown set that they wanted to be invited to parties with Linda Greenhouse and the mainstream liberals in D.C. that they would have their own group, that they would have their own audience, who they could kind of generate an internal sense of approval and validation. When conservative judges did good conservative things, they get applause when conservative judges did not good conservative things. See, e.g. John Roberts in the health care case, they get booed, right? They run ran John Roberts right out of D.C. at that point. And so this was this is a key function, I think, of the Federal Society Network. And we you know, we saw it with Clarence Thomas, too. This is his new sort of judicial audience. Are these conservative Republican donors and Ginni Thomas’s Tea Party friends. And these are the folks that he’s seeking approval from, not the Linda Greenhouse Supreme Court New York Times reporter.

 

Melissa Murray That whole concept of a judicial audience makes so much more sense and really helps to contextualize the leak of the Dobbs opinion, like where so many people were like, why would that leak? What was the purpose? But if you’re really thinking about this idea of judicial. Audience, it makes perfect sense that you might leak this to make clear to a wobbly justice that he better get his conservative bona fides in line because he’s not going to have the audience he wants. And and if you’re a justice, who cares what people think about you Like, that might be incredibly.

 

Leah Litman Cough. Brett Kavanaugh. I mean.

 

Melissa Murray I wasn’t going to name names. It was a hypothetical justice, Leah.

 

Leah Litman I mean but when you’re talking about people who are people and they want to be liked. I’m sorry, but it basically sounded like the Federalist Society was created.

 

Melissa Murray For Brett Kavanaugh.

 

Leah Litman In the event, exactly. There would be a Brett Kavanaugh who had this compulsive desire for affirmation and values.

 

Amanda Hollis-Brusky Absolutely. And if you sort of rewind and and the federal Society’s not in the picture and Brett Kavanaugh was put on the Supreme Court. Well, who are the folks who are giving applause?

 

Melissa Murray Linda Greenhouse.

 

Amanda Hollis-Brusky It’s the Linda Greenhouses of the world. And Brett Kavanaugh wants to be liked. And so the idea of the federal society was, again, to create a very conservative judicial audience so that conservative judges could get that validation and self esteem and also be censored if they fell out of line.

 

Leah Litman [AD]

 

Melissa Murray Another thing the book really explains very well is the importance of the Federalist Society’s, quote unquote, de facto monopoly on the credentialing of rising stars. And I want you to explain what you mean by that, the kind of work that it does and the way it might work, both on the judiciary, but also in academia, where I think it’s also quite relevant.

 

Amanda Hollis-Brusky Yeah. So this was a quote that came from several of my interviewees. Again, so much of what I learned was from the mouth of federal society members themselves back in 27, 2008, and even back then, that the federal society had risen to this role during the George W Bush administration, in particular of supplanting the American Bar Association as kind of a sole organization that Republican presidents would look to when they were developing their long lists and looking at the farm team for potential judicial nominees. It didn’t happen overnight. Again, it happened as the organization grew and made more sort of inroads into mainstream Republican politics. But again, by the time George W Bush takes office, he announces that he’s no longer going to consider the American Bar Association ratings, that he’s going to look to organizations like the Federal Society. And so they become the only organization that can reliably produce and vouch for good conservative judges. We saw this during the failed nomination of Harriet Miers. Many of my interviewees at that time were saying, you know, Harriet Miers was a close personal friend of George W Bush in the Bush family, but we didn’t know her in the Federalist Society, and we need to know you. The exact quote was You need to be at conferences gripping and grinning. We need to be sure that you are as conservative as you say you are, because no more David H. Souter’s, who was also a close family friend of George H.W. Bush. And so the federal society has been exceptionally effective at kind of credentialing and vetting potential nominees, not only for the federal courts, but if we think of the Department of Justice, White House Counsel, Office of Legal Counsel, and yes, Melissa, the Academy as well, we think about the folks who get selected to be in the past all in fellows and who get those prestigious chairs and who are then kind of tapped. Amy Coney Barrett was an Olin fellow who were then tapped and put into more kind of prestigious elite law schools where they can get credentialed and be taken seriously and published scholarship that their fellow federal society judges can then use to justify radical decisions. And so it’s an interconnected network. It’s an exceptionally effective network, and there really isn’t anything like it on the left.

 

Leah Litman So we’ll get to whether there even could be a Federalist Society on the left, you know, toward the end, after we go through a little bit more, some of the additional mechanisms you talk both about in ideas with consequences and separate but faithful for how these groups have tried to move the law in their preferred directions. But another dynamic that you mention in the book and that your previous answer began to touch on was how the Federalist Society functions well beyond law schools. And you have a quote from Ed Meese that saying, the Federal Society has contributed a great deal to the legal profession as a whole. It’s been a material factor there. And I was wondering if you could kind of expand on your answer, which touched on, you know, academia and credentialing scholars as well as credentialing people for service in the executive branch for other things that the Federalist Society did above and beyond law schools, academia, to further the counter-revolution.

 

Amanda Hollis-Brusky So I think there’s a recognition within the federal society. Again, it starts in the law schools. It grows out of the law schools. You get lawyer practicing lawyer chapters in every major city. Leonard Leo’s brought in later in the nineties. The Federal Society is started in 82, but Leonard Leo was brought in later to shore up the practice groups which are organized around issue area. So there’s a Second Amendment practice group, there’s a free speech and election law practice group, and those are practicing lawyers, litigators, academics who come together to develop, share, refine strategies for litigation. And so that’s another area where the federal society has been effective. When I was doing my interviews, they had just started to give their members media training. And this is, again, a recognition that it’s not just law. You have to affect the broader culture before you can deploy legal arguments and have them been taken seriously. So in separate but. Faithful. I refer to this as cultural capital. And academia certainly plays a role, but the media plays a bigger role. And the media is going to be the judge of whether something that comes out of the courts is seen as whack a doodle totally off the wall, a little bit out there, but still plausible or legitimate and credible. And so the federal society has also made an effort in the kind of broader media world to do that work around the culture so that the culture is prepared for the moves that federal society, judges and lawyers want to make down the line.

 

Melissa Murray So like brush clearing, like what does that brush clearing look like?

 

Amanda Hollis-Brusky It’s like raking the forests so that you don’t know. That was a Trump reference in California. I talk about that all the time. Oh, the way. No, the wildfires haven’t been that bad because we’ve been raking the forests.

 

Melissa Murray In and there’s no climate crisis. Just rake the forest.

 

Amanda Hollis-Brusky Yeah. So, you know, more than raking. I actually think it’s like planting. All right, so it’s the opposite. So you’re planting the seeds so that these arguments land in a somewhat fertile environment. I guess if I want to push that metaphor. But that work is really important and it has to be done outside of the court first.

 

Melissa Murray How do they do that? I hear the part like, you know, I see Justice Thomas sort of seeding arguments in these separate concurrences that nobody ever joins, but like Jim Howe reads them on the fifth circuit.

 

Amanda Hollis-Brusky That’s right.

 

Leah Litman Just to give a quick example about this, you know, the book discusses how Justice Thomas’s concurrence in Prince versus United States. You know, a decision from the 1990s basically floated the idea of, you know, I’m super interested in this idea that the Second Amendment might protect an individual right to own firearms like Kenya. I’ll look into that one for size

 

Amanda Hollis-Brusky I’m just going to crawl in here. But it’d be great if down the line we could take this question up.

 

Melissa Murray Yeah, that’s fascinating. One, I’m just fascinated that Ted Cruz has had media training that’s out there, but can we talk about this annotated bibliography of conservative and libertarian legal scholars? Yep. I know this is very inside baseball, academia, but it also seems relevant to this idea of projecting ideas beyond the ivory tower and beyond the courts.

 

Amanda Hollis-Brusky Yeah, so this is something and I’m not even sure even exists anymore. But when I was doing my fieldwork, you know, between 2000, let’s say seven and 20 1213, when I wrapped up some data gathering on the book, this was something that existed on the Federal Society website, and it was recommended reading for incoming law students or current law students. And you could pick an area and it would give you recommended reading in this area. And when I was doing a process tracing, you know, when justices would cite a certain piece, when Citizens United, you know, sure enough, there it was in the Federal Society’s Annotated bibliography on, you know, the First Amendment.

 

Melissa Murray It’s not just Leonard Leo’s laundry list, literally. It also has a library that you can go to.

 

Amanda Hollis-Brusky Leonard Leo has a reading. It’s a book club. It’s Reese Witherspoon’s book club. But for Leonard. Leo Yeah. So one of the things that I always talk about, the Federal society, it’s sort of got two sides. One and these are two phrases that I heard over and over and over in my interviews, and one is the ideas have consequences side.

 

Melissa Murray Yes. My uterus clenched up when you said.

 

Amanda Hollis-Brusky That’s right. Correct. Ideas have consequences. Side And that is sort of the idea generation, intellectual production and a lot of the process tracing I go through in ideas. But the other is the policy is people side and this is Leonard Leo All right Leonard Leo’s brought in because there’s an acknowledgment that yes, ideas have consequences, but only if those ideas are connected to networks of influential people who have access to or are policymakers. And so that is sort of, you know, it’s not, is it? It’s Leonard Leo’s book club meets Leonard Leo’s, you know, network of of billionaire billionaire Superyachts and cyber resorts. Absolutely. Yeah.

 

Melissa Murray It’s also even more wild now that he’s launched this other thing. Teneo on the view that the left has been doing exactly this sort of thing connecting ideas with influential people at Disney and Universal Studios and the White House, The New York Times and George Soros. And that’s how all of this is happening when they’re the ones that have been doing it the whole time.

 

Amanda Hollis-Brusky There is a fascinating vibe, if I may, in the federal society. And they still act like.

 

Melissa Murray Agrieved. Underdogs.

 

Amanda Hollis-Brusky Underdogs, an embattled minority. And that identity makes a lot of sense from a mobilizing standpoint. If you think about the political science or the political psychology behind that, if you. You are constantly in a state of persecution and status loss. Right. And fearing that you’re an oppressed minority.

 

Melissa Murray It really is. It is a status loss. You’re not actually an oppressed minority. You’re actually just worried that you’re lost your status as the dominant majority, that’s all. Anyway, I’m sorry, this is making me angry.

 

Amanda Hollis-Brusky Really? Because writing these books brought me so much joy. I can’t imagine how reading them could make you angry.

 

Melissa Murray I just, like, so sorry. Go ahead.

 

Leah Litman I was just going to say. Right. Maybe so we can spark more joy and talk some about separate but faithful. You know, you in separate but faithful to discuss several different alternative strategies that the religious right has at different times pursued in order to effect their preferred changes in the law. So one of the strategies is infiltration. Another is the parallel alternative approach. And the third is the supplemental approach. And I was just hoping you could describe for our listeners like what these alternative strategies are, maybe so that they can spot them in the wild when they occur.

 

Amanda Hollis-Brusky Yeah, again, that sounded very jarringly academic, so I’m going to go ahead and translate that for the listeners. The Federal Society is what we call a supplemental approach to institution building. So the Federal Society didn’t set out to build its own new institutions. It created a supplemental education and network and through their clubs and their organizations within existing institutions. And so, again, we call that a middling approach. And so if we think the federal society has been wildly successful, it’s done so through this what we call supplemental approach to education, the infiltration approach. You can think about the Koch brothers here. They’re trying to buy chairs or buy whole economics departments in universities, and it gives them a way to control, to hopefully recruit or hire the type of folks who are going to espouse free market economics and their philosophies of well-being, which involves, you know, not being dependent on the state. And so that is what we call kind of infiltration approach. So you have if you step back, you got a bunch of money and you want to influence higher education because you think higher education is an important beachhead to establish for your particular philosophy or your particular politics. And so the three approaches are really what is going to be the most effective and how are you going to spend your money to try to influence higher ed? Again, infiltration is like the Koch brothers supplemental would be like the Federalist Society, and then you just build your own institutions. And that’s an approach we call kind of the parallel alternative approach. And really what attracted me about the case studies and separate but faithful was first and foremost that these Christian Right billionaire patrons decided to build their own law schools from scratch rather than engaging in these other strategies to try to influence the longer term development of the law. And part of the puzzle in Separate but faithful is figuring out, well, why did they do that? And the other part of the question that we examine is, well, what are the consequences of that choice? If you build institutions that exist intentionally outside of the mainstream because you don’t think you can work within the mainstream, then how do you leverage those institutions to then affect the mainstream law, mainstream legal culture down the line? So that’s sort of the bigger set of questions we’re looking at in separate but faithful.

 

Melissa Murray So related to that, and this sort of talks about, I guess, maybe infiltration of law schools, can you talk about the Blackstone Fellowship, which many people may not have heard about? I think there’s been a couple of news stories about it over the years, but can you talk about what the Blackstone Fellowship does, why it’s especially effective and how it sort of fits into these patterns and dynamics?

 

Amanda Hollis-Brusky So the Blackstone Legal Fellowship is not unlike the Federal society. The Blackstone Legal Fellowship is under the general auspices now of Alliance Defending Freedom, and they grow out of Alan Sears, who is the founding member of Blackstone. His negative experiences in law school. Again, think of the same narrative we talked about with the Federal Society members being feeling like an outsider, feeling like they couldn’t come out as conservative. I mean, this is a phrase I heard a lot during my interviews, like likening themselves to closeted LGBTQ folks. And Alan Sears wanted to build the Blackstone Fellowship to identify, train, create a network in a home for Christian conservative law students.

 

Melissa Murray So can I just ask a question? Is it just Alan felt like he could not find any Christians in law school.

 

Amanda Hollis-Brusky Part of it was fellowship, but I heard the phrase we wanted more than fellowship over and over and over. So it’s not that he didn’t have anyone to pray with or there weren’t.

 

Melissa Murray There are a lot of black people in law school and they go to church.

 

Amanda Hollis-Brusky Right.

 

Melissa Murray Can confirm.

 

Amanda Hollis-Brusky Right.

 

Melissa Murray Were you not hanging out with the black people? Don’t answer that.

 

Amanda Hollis-Brusky And so according to the folks that interviewed at Blackstone, it was less about kind of that fellowship aspect and more about my beliefs about the Bible and about God should, and I believe, do affect how I think about the law. And those things aren’t being represented in my classroom. And also my professors don’t believe that natural law. Right. This idea about kind of biblically inspired natural law should inform my law school teaching, should inform how I think about the law. So, yes, there’s a kind of belonging element to it. But like the federal society, it was about believing deeply in a philosophy or an approach to studying law that was not taught in mainstream law schools and was not considered to be legitimate in mainstream law schools.

 

Melissa Murray Like critical race theory?

 

Amanda Hollis-Brusky Oh, yeah. And so the Blackstone Fellowship, it’s a training fellowship. And instead of being at the law schools like the Federal Society is, it actually recruits students throughout the country, brings them together. In Scottsdale, Arizona, at the headquarters of Alliance Defending Freedom. For a summer boot camp in the natural law, sort of to the Christian worldview, kind of Christian foundations, biblical foundations of law. And then there’s an internship component. So phase two involves an internship where they’re placed in an internship with a sympathetic employer, maybe Alliance Defending Freedom. Several end up interning and then going on to be attorneys for Alliance Defending Freedom. And the Blackstone faculty are actually a rotating set of faculty. It’s included folks like Amy Coney Barrett, Kyle Duncan. Right. The list goes on. I mean, folks who have come through this Blackstone program and it’s obviously connected to Alliance Defending Freedom, which is now a giant in the field of Christian right litigation.

 

Melissa Murray Yes, we we learned about this with the mifepristone ruling where the Alliance Defending Freedom represented the Alliance for Hippocratic slash Hypocritical Medicine. And Judge Matthew Kacsmaryk essentially imported their entire brief into his decision as a judge does.

 

Amanda Hollis-Brusky Absolutely. And that that whole ruling is fascinating when it from the perspective of the folks that I studied at Regent Law School, Liberty Law School of America, it’s as if one of their faculty members wrote that decision. I mean, that’s just how squarely within kind of the Christian right legal world, that opinion was.

 

Melissa Murray Like, alt right chat GPT. Amazing.

 

Amanda Hollis-Brusky Yeah.

 

Leah Litman [AD].

 

Leah Litman So you say in the book ideas with consequences that you are writing about what the Federalist Society does and not what it is. Could you elaborate a little bit on this distinction? Because to my mind, that seems to be responsive to are getting at something that comes up when you make claims about what the Federalist Society does. And the response is, well, I just attend an event to hear a debate or a discussion. So that’s not my experience with the Federalist Society or that’s not what I see the Federalist Society as.

 

Amanda Hollis-Brusky Yeah. So I think there’s a couple interesting points that come out of that question. So the first is, I’ll pick up on what you said. That’s not my experience with the federal society. The federal society is very decentralized and there are law students who join it, who go for the nice meals to hear the speakers and do very.

 

Leah Litman I almost got food poisoning at a Federalist Society event. When I tried to go for the nice meal, I literally got E coli. That this is my villain origin story.

 

Amanda Hollis-Brusky This should have been a this should have been a sign.

 

Melissa Murray That was a sign.

 

Amanda Hollis-Brusky Yeah. And so in the course of my of writing the book, I was careful to say the entire organization is not a monolith. They are not they don’t all move as one. But there are an identifiable set of repeat players who are actively engaged in judging or litigation or in federal or state politics, who are actively trained by, branded by, and then out there doing the work of the Federalist Society. And so that’s how I’d respond to well, not everybody in the federal society has that same experience. And I think that’s that’s fair. When I say that the book really doesn’t get at what the federal society is. What I mean by that is some have asked, is the federal society new? Is it different from how legal networks have operated in the past? Does it represent something new and different? And they’ll hearken back to, say, the New Deal era. And you can identify a set of folks connected through Harvard Law School and Felix Frankfurter and his little hot dogs. Right. The clerks that came through Harvard Law School who were connected, who shared a set of beliefs and who ultimately were impactful on New Deal jurisprudence. Isn’t the federal society just like that.

 

Melissa Murray Like a bunch of whiners working for a single judge.

 

Amanda Hollis-Brusky Like a bunch of little hot dogs? Yeah, the the Leonard Leo.

 

Leah Litman Boys with hot dogs.

 

Amanda Hollis-Brusky And his hot and his little hot dogs. And I think to some extent, they’re that the federal society modeled itself consciously on what Steve tell us calls the liberal legal network. So they looked at how the left had done this in the past and part of it the legacy grows out of Howard Law School and the civil rights era, that there was a pipeline there, too.

 

Melissa Murray Thurgood Marshall is literally like, I did not walk so literally I could run.

 

Leah Litman But but it does like speak to this idea and the broader co-optation of this notion that we are the oppressed minority who are victims of this larger group that is not giving us and our views a fair chance. And this idea just comes up in the structures they build, the doctrines they create, the way in which they speak about particular areas of law. And it is just fascinating. Great to have all of these threads collected around this principle.

 

Amanda Hollis-Brusky And to some extent, yes, they modeled themselves on those earlier liberal networks. But, you know, as I remark in the book, maybe they were just the first to bottle lightning, but after Leonard, Leo and the Trump administration and releasing that list of judges in the 2016 election that was with the Federal Society label and stamp of approval, to me, that went from bottling lightning to manufacturing electricity. They’re doing something qualitatively different now and their public in a way that the liberal legal network was a little bit more informal. And so I do think that they’re doing something qualitatively different, particularly since 2016.

 

Leah Litman And also like to the extent that any analog on the left has ever existed, it has not been nearly as, let’s say, ruthless or brutally efficient at selecting for people with particular views rather than selecting for people within certain networks. That is, that rewards someone who you went to school with, right? Or someone who you were kind of colleagues with, not write the person that proved themselves. Time and time again as having a set of ideas that they are willing to push to the max. And, you know, so so that also struck me as like a meaningful difference.

 

Amanda Hollis-Brusky Yeah. And a part of this gets just the difference between the left and the right, the difference between the Democratic Party and the Republican Party. My colleagues from Berkeley, Matt Grossman and Dave Hopkins, wrote a great book called Asymmetric Politics, and they talk about how Democrats and Republicans are just different. Republicans are the party of ideology and ideas and cultural symbolism, and they mobilize around that. And the Democrats are about interest group politics, and they have a big constituency. And so they prioritize things like diversity on the bench, not only racial ethnic diversity, but professional diversity has been, as we’ve seen with the Biden administration, you know, selecting folks who’ve had different kinds of legal experience on the right. They’re looking for adherence to a set of ideas and beliefs exclusively.

 

Melissa Murray It’s also, I think, not just asymmetrical in terms of approaches. I mean, it’s actually asymmetrical in terms of numbers like the Democratic, progressive, liberal big tent model is one that speaks to majorities, whereas the Federalist Society model, not surprisingly, speaks to a very well funded, well mobilized minority. And again, this plays into their understanding of themselves as oppressed minorities. But no, you’re just you’re just a minority or you may not actually be oppressed, but you’re just a minority. That dynamic, I think, contributes to the way in which they’ve managed to network themselves and to be especially effective. And you describe it in the book as a kind of political epistemic network. And could you explain what you mean by that? And you know, what that looks like on the ground and how it shakes out in the current order that we see on the court where it feels like majoritarian preferences are being completely disregarded in favor of minority ideologies?

 

Amanda Hollis-Brusky Yeah. So I think you’re exactly right. And one of the reasons the courts are an attractive venue for Republicans is because they’re a minoritarian venue and being able to staff the federal judiciary with young movement ideologue judges means that you can enshrine your party’s largely unpopular political agenda through the courts for decades and insulate that from any electoral changes or mobilization by the left. And so it’s an exceptionally attractive venue, and it’s one in which, again, if you can get organized and be focused like the federal society has, they’ve been very effective. And we’ll see. You know, Trump’s legacy was in the federal judiciary. That is what will last, you know, absent some massive structural reform to the courts. And in the book, you know, I talk about the federal society as this political epistemic network. And all I mean by that is epistemic in the terms of ideas. They are an organization that doesn’t love ideas for their own sake. I am very clear that in the book that these ideas are embraced because they’re instrumental, they have strategic value, that they get the conservatives, the kind of rulings they want. They get the conservative judges to implement the kinds of policies they want. And so originalism is a vehicle to an instrumental set of ideas that gets these judges the policy results that they want and political, because it involves policymakers infiltrating White House counsel, electing Republicans so that they can have the kind of influence. And then, you know, I know as Lee, as you’ve written about, you know, these judges then issue decisions that rebalance the political landscape itself through voting rights, through campaign finance, through redistricting, they’re issuing decisions that then favor and have Republican electoral outcomes. And then Republicans are elected and they appoint more Republican judges. And so political epistemic network is just a fancy way of talking about this particular way of really focusing on the courts as a venue to enshrine minority views and minority politics for decades to come, and to do so in a way that at least has the veil of legitimacy, because it’s sort of wrapped in this originalism and historical research and scholarship.

 

Leah Litman So you’ve already kind of alluded to this a few times, but I just want to ask the question directly, because it’s one we often receive, and I always want to just punt the question to you. And since you are here, you know. You discuss this in ideas with consequences, but is a progressive or left leaning Federalist Society even possible given the different conditions that you say kind of facilitated the success of Federalist Society and also its mission and how they carried it out?

 

Amanda Hollis-Brusky This is a question I get a lot to, and I’ve thought a lot about it. Of course, we have the American Constitution Society, which modeled itself on the Federalist Society, and it’s an organization which does a lot of great work and certainly brings progressive scholars together.

 

Melissa Murray That’s a great job of identifying rising young stars.

 

Amanda Hollis-Brusky Right. I’ve heard a few I’ve heard a few have been given awards recently. So I think the issue that always comes up for the American Constitution Society is that, as one of my interviewees put it on the left, there are a million ways to get credentialed. Mm hmm. Right. The ax might be one of many on the right. There’s only one. So on the left you can become deeply involved in the American Bar Association or the American Constitution Society. Or you can take a different path entirely. And so it’s almost a competition issue on the left, because by and large, you know, there are many places where liberal rising stars can be identified.

 

Melissa Murray It’s the tyranny of the minority. It really is.

 

Leah Litman So that is probably all we have time for today. But, Amanda, we cannot thank you enough for joining us and sharing your expertise with our listeners. Again, a reminder, the books we’ve been discussing are, one, Ideas with Consequences, the Federalist Society and the conservative counterrevolution, as well as Separate but Faithful, which is co-written with Professor Joshua Wilson. So for anyone who wants to understand more about the court and the legal culture that is driving some of these decisions, I cannot recommend these books highly enough. When I started out in academia, actually, someone recommended ideas with consequences to me and I read it and I was like, Oh, I understand. Like so much of what is happening around me and you know that I want to respond to. Anyways. Thank you so much, Amanda, for joining the show.

 

Amanda Hollis-Brusky Thank you. And yes, the books make great beach reading. I highly recommend.

 

Melissa Murray Only if your beach is one that you get to by way of Superyacht travel.

 

Amanda Hollis-Brusky Especially if you’re on a super yacht or a private jet.

 

Melissa Murray This is not the book you read in the Walmart parking lot. This is.

 

Amanda Hollis-Brusky No.

 

Melissa Murray It’s for rare air.

 

Amanda Hollis-Brusky Not in the land yacht.

 

Melissa Murray No, no. for sure.

 

Amanda Hollis-Brusky You might get motion sick.

 

Melissa Murray Amanda, thank you so much for this.

 

Leah Litman Don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content, host takeovers, and other community events. And don’t forget to follow us individually as well. We’re all on Twitter, but we are also in our Twitter replacement era. So that means we’re also all on Blue Sky, including the podcast at our same Twitter handles. So say hi if you’re over there. The podcast is Strict Scrutiny podcast on Blue Sky, but the rest of us are out our Twitter handles on Blue Sky and the podcast and I are also on threads. I’m at Prof. Prof. Leah Litman Because my regular username wasn’t available there, though, you should still be able to search for me. So come say hi and see what the vibes are On threads before someone convinces a federal court somewhere, probably in the Fifth Circuit to enjoin that just for funsies. And if you’re as opinionated as we are, consider dropping us a review wherever you listen to your podcasts. Strict Scrutiny is a crooked media production hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Ashley Mizuho, Michael Martinez and Ari Schwartz. And Digital Support from Amelia Montooth.

 

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