Will eliminating Chevron deference result in increased partisan judicial review of agency interpretations of law?
The Federalist Society and the American Constitutional Society are often thought to be mirror images of one another — associations of lawyers on the ideological Right and Left respectively. But they run their conferences very differently. The Federalist Society almost always has representatives of the Left on its panels about substantive legal issues, but the ACS much less frequently has representatives of the Right. At their 2017 conventions, I estimate that approximately 32 percent of such panelists at the Federalist Society were on the Left whereas about 13 percent were on the Right at the ACS (I exempt memorial or how-to panels like ones on running for office or on public interest litigation). One head-to-head example: on a panel about federalism at the Federalist Society, there were three professors on the Right and two on the Left, but at the ACS, there was no representative of the Right. On the faculty panels at the 2018 AALS convention (that of law professors) being held now, the story is much the same with no one on the Right on the one ACS panel and liberals represented on most of the substantive discussion panels at the Federalist Society.
I offer four possible explanations of the difference. They are not mutually exclusive.
- The Societies have Different Origins. The Federalist Society was started by law school students who were veterans of the Yale Political Union, itself a debating society. They relished debate and the Federalist Society thus operates in the shadow of its Founders and their values. The ACS was started later by older established lawyers with experience in politics. Winning at politics is a story more of coalition building than debate and thus representation of the other side is less useful.
- Conservatives believe more in debate. It has been much discussed that the Right is more enamored of expanding First Amendment freedoms than the Left these days. Welcoming debate is a corollary to that. One reason may be that the Right is more confident of its ideas. Confidence welcomes confrontation.
- The right is underrepresented among lawyers and radically underrepresented in the legal academy. The Federalist Society wants to get their ideas and people known and the best way of doing that in the left-leaning world is to have discussions with the other side to gain respectability or at least notoriety. The academy and even much of the established bar is much harder to distinguish from the ACS than from the Federalist Society. The ACS thus not does need to gain respectability as much and can concentrate more on resolving internal conflicts and pushing an agenda without brooking contradiction.
- The Federalist Society is richer than ACS. They can afford to fly in left-leaning speakers.
I would welcome other possible explanations.