The Legal Beat

Breaking The Chokehold FedSoc Has On Right-Wing Legal Thought
Posted on Thursday November 16, 2023

Since the 1980s, the Federalist Society has dominated right-wing legal thought. Started as a debating society, the organization, with its chapters in almost every major law school in the country, has risen in prominence. It has come to be the dominant conservative legal organization. All the Supreme Court justices appointed by Republicans have ties to the organization, FedSoc Chair Leonard Leo selected all the judicial candidates that Donald Trump nominated for the federal bench, and membership in the organization is seen as a litmus test for conservative thinkers.

You might think, given the increased prominence of the organization, right-wing legal minds would be taking a victory lap. But FedSoc is very much in bed with Donald Trump, and that doesn’t sit well with everyone, particularly not after the 2020 election, aka the debacle that launched oh so many indictments. Earlier this month, the Society for the Rule of Law launched, or rather re-launched from its former name, Checks & Balances.

Conservative legal luminaries are at the helm of the organization, including attorney George Conway, former Judge J. Michael Luttig, former Rep. Barbara Comstock, former Acting Attorney General Stuart Gerson, and former Reagan White House lawyer Alan Raul. And while they still sign on to many right-wing principles, they’re also looking to pull back from the wildest legal theories FedSoc has empowered. As Stuart Gerson, Board Treasurer, noted, “The conservative legal movement as it currently exists has failed to stave off the worst excesses of bad-faith actors working to subvert the Constitution for their own ends. It’s time for a new Constitutional champion. By cultivating the rising generation of legal talent in defense of our founding principles, the Society will play a key role in securing all Americans’ liberties through the troubled times ahead—and for years to come.”

And they have a plan for winning over the hearts and minds of conservatives around the country:

The unprecedented legal challenges around the 2020 election and its aftermath created the need for pro-democracy voices within the conservative legal community willing to support and defend the Constitution. To answer that call, the Society is expanding its operations to encompass the following core areas:

• Educating Americans about the direct threats to democracy and the rule of law posed by certain elements within the conservative legal movement, including those that tried to overturn the results of the 2020 election.

• Expanded events and programming aimed at engaging those in the legal community and law schools in the vital work of supporting and preserving America’s legal institutions from those actively working to undermine them.

• A nationwide membership society, including conservative and center-right law students, scholars, and legal practitioners committed to the rule of law.

As part of this process, they’re embarking on a nationwide tour of law school and university campuses to engage students and scholars. Which is very much taking a page from FedSoc’s playbook, seeing as a strong law school presence was key to their growth.

Now progressive legal minds might think of this as more of the same, and no doubt they’ll advocate for more of the same, but given how far afield FedSoc has gotten, you have to see this as an improvement.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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