In the academic world, originalism has become the theory of constitutional interpretation to beat.
The Federalist Society is the most important civic organization formed in the last forty years. Even academics are coming around to the conclusion. In 2010 Steve Teles wrote a marvelous book, The Rise of the Conservative Legal Movement, which rightly gave the Federalist Society pride of place as an organization that held the legal right together by providing a place to debate fundamental issues. As Teles observed, because the Society did not take positions in litigation or before legislatures, it was able to attract both libertarians and conservatives who were united both by their antipathy to left liberal establishment and their view that the Constitution should be read according to its original meaning rather than as a document that changed with the times.
In a new book, Ideas with Consequences, Amanda Hollis-Brusky attempts to chart the Federalist Society’s actual legal influence, particularly on the Supreme Court. I reviewed the book Friday for the Wall Street Journal. While it is not as good a book as that of Steve Teles, it does show how ideas refined at the Federalist Society conferences have made their way into Supreme Court opinions, in such areas as the Second Amendment, federalism, and campaign finance regulation.
Oddly enough in a book which has Ideas in its title, Hollis-Brusky at times slights the importance of the intellectual environment the Federalist Society has created. For instances, she blames conservative distrust of Harriet Miers on her failure to have participated in Federalist Society events. But as I say in my review:
the lack of credentials was not her biggest problem. The society had given an intellectual depth to conservative jurisprudence that Ms. Miers wholly lacked. The withdrawal of her nomination signaled that a sophisticated framework of ideas can constrain even a right-of-center nominee from a conservative president.
The unique excellence of the Federalist Society thus lies not in credentialing appointees but in creating a standard of intellectual seriousness in conservative legal thought that Republican nominees must now meet. It is unthinkable that a Republican President could nominate candidates like Harry Blackmun or David Souter. Eisenhower may well have been correct when he said referring to Warren and Brennan that his two worst mistakes were sitting on the Supreme Court. But it is likely that, in contrast, George W. Bush’s two best accomplishments are sitting on the Supreme Court. And a lot of the credit for this goes to the Federalist Society.
Hollis-Brusky is not sanguine about the Federalist Society’s success, because she worries that it will lead to the political polarization of law. Here she is completely wrong. As I state at end of my review:
The Federalist Society has succeeded because, much like cable news and Internet commentary, it offers an alternative to viewpoints that, for a long time, defined themselves as politically neutral but were in reality left of center. Ms. Hollis-Brusky worries that the rise of the Federalist Society may lead to more polarization of the law. But the alternative would be worse—a progressive legal consensus maintained by elite institutions, masquerading without challenge as unimpeachable wisdom.