It’s not too extreme to say that one wonky student group founded in 1982 has reshaped the Supreme Court, and the nation. What actually happened at the birth of the Federalist Society? ….
...a few conservative students at elite law schools sensed not anxiety but a moment of opportunity. Inspired by Reagan’s ideology and emboldened by his election, they did something ambitious to the point of audacious. They asked a collection of the country’s most notable right-leaning scholars, judges and Department of Justice officials to assemble at one of the very hubs of liberal orthodoxy, the campus of Yale University. Convened principally by Steven Calabresi, who was at Yale Law, and Lee Liberman and David McIntosh, who were at University of Chicago Law, some 200 people arrived in New Haven, Connecticut, on the last weekend of April for a three-day symposium.
It had a dry title—“A Symposium on Federalism: Legal and Political Ramifications”—and it easily could have been just another set of lectures, of interest only to a small lot of participants and attendees, the kind of higher-ed, corkboard-flyer get-togethers that happen all the time with no broader fanfare or larger lasting consequences. But at this one, as speakers castigated what they viewed as coastal elites and a leftist media and legal establishment and argued for a more “originalist” reading of the Constitution, people present felt a new sort of buzz. In the hallways, between the sessions, the vibe was more than just brainy….
Over the years, the Federalists have honed a disciplined, excessively modest narrative of their origins and purpose—that they are simply a facilitator of the exchange of ideas, a high-minded fulcrum of right-of-center thought, a debating society that doesn’t take overtly partisan, political positions. That narrative is not wrong. It’s just not the whole truth. The full story of that initial weekend—based on interviews with people who were there, as well as the seldom-read words of the speeches recorded in a 1982 issue of the conservative Harvard Journal of Law and Public Policy—reveals something different. The effort was, from the get-go, aggressively political. There was a feeling of steeling for a fight….
...Bork, for example, who had been a law professor at Yale and had just become a federal judge, spoke of “the onslaught of the New Deal” and “the gentrification of the Constitution.” Abortion and “acceptable sexual behavior,” he said, should be “reserved to the states.” Pointedly, with Roe v. Wade, he said, the Supreme Court had “nationalized an issue which is a classical case for local control. There is simply no national moral consensus about abortion, and there is not about to be.”….
“Part of Reagan’s policy was to build up forces in battleground nations in order to help topple enemy regimes,” Calabresi told Riehl, “and I thought of us as kind of the same equivalent in law schools.”
At Yale, Calabresi and a couple of conservative law students formed a student group in the fall of 1981. Eating lunch one day, according to a subsequent telling in the journal at Harvard, they batted about possible names. The Ludwig von Mises Society? The Alexander Bickel Society? The Anti-Federalist Society? The Anti-Federalists, after all, were the ones who sought a more decentralized government at the time of the founding of the country. They landed, though, on the Federalist Society, because it invoked the Federalist Papers and the long-running American debate about the appropriate balance of power between the national and state governments….
...They had the beginnings of buy-in. Now they needed arguably an even more important lubricant. Money. Leveraging a recommendation from Scalia, Calabresi contacted the conservative Institute for Educational Affairs to ask. “As Professor Scalia of the University of Chicago Law School mentioned to you last Wednesday on the telephone, we are interested in holding a symposium,” he wrote early that February in a letter archived among Bork’s papers at the Library of Congress. “Professor Scalia said you thought I.E.A. might be quite interested in sponsoring and funding such a symposium.” Calabresi estimated that it would cost “in the neighborhood of $24,000.” It ended up being closer to $25,000. And it worked. IEA wrote a check that covered most of the cost. The rest came from donors, including the John M. Olin Foundation and the Intercollegiate Studies Institute….
In 1987, Bork’s Supreme Court nomination was scuttled by a liberal-led Senate campaign that used Bork’s own words on issues such as Roe v. Wade—issues he had spoken about at the symposium. It angered and motivated members of the Federalist Society, convincing them they needed to redouble their efforts. “It was a galvanizing defeat,” Hollis-Brusky told me, demonstrating to some of them that they had tried to come too far, too fast. It also reinforced the notion that ideological purity wasn’t the only ingredient to transforming the judiciary. Raw politics mattered as well. And nearly two decades later, the Federalists would cement their power by keeping someone off the court. In 2005, they agitated for the withdrawal of George W. Bush’s nominee Harriet Miers, who had no Federalist Society ties (and a conspicuously scant résumé), leading to the nomination of Samuel Alito, who did. The episode affirmed the way in which the society’s influence had grown. Alito joined fellow Federalist Society contributors Scalia, Clarence Thomas and Chief Justice John Roberts….
