The Legal Beat
Anatomy Of A Federalist Society Complaint
Posted on Monday July 19, 2021
Lather. Rinse. Repeat.
While this story is about the tempest in a Twitterpot stirred up over the weekend, it can easily be lifted and dropped on the next episode of defensive outrage from the Federalist Society. This weekend it was Slate, but next time it’ll be The Atlantic. Or The New Republic. Or Cat Fancy. It doesn’t matter what kicks it off, it’ll always play out over a few stages. Just keep this post bookmarked for future reference.
Today’s installment involved a post in Slate by Nicholas Wallace. You remember Nicholas Wallace, right? The Stanford Law School student whose graduation was put on hold because a troika of Federalist Society members had a case of the feels after he produced a parody flyer suggesting that prominent Federalist Society members were deeply involved in the January 6 riots just because… prominent Federalist Society members were, in fact, deeply involved in the January 6 riots. Now graduated, Wallace wrote an article entitled Boycott the Federalist Society, pointing out the role the organization played in setting the table for the Capitol Hill putsch.
So cue the SocHeads coming out of the woodwork to scold anyone for endorsing this affront! And the seals opened and the four horses of Federalist Society defense rode forth.
“What? We’re Just A Non-Partisan Debating Society!”
Here’s ASSLaw professor David Bernstein:
…not sure why he doesn’t understand the art of finishing Tweets with complete sentences but the salient part is there.
To some extent, this is the byproduct of a farcical tax code that allows an organization so deeply in bed with the MAGA universe that its chairman took a leave of absence to funnel even more dark money into Trump’s efforts to remake the judiciary to claim that it’s non-partisan for the sake of preferential tax treatment. The American Constitution Society does the same thing, so I’m not going to begrudge the Federalist Society for playing the game at tax time.
But this isn’t tax time so we can dispense with the regulatory fig leaf.
As an organization, the Federalist Society does three things: (1) lay the pseudo-academic table for the MAGA movement; (2) recruit students to indulge their most trollish impulses — like mocking sexual assault — while placing them on greased rails to the federal bench… regardless of actual qualifications; (3) serve Chick-fil-A. Every one of those is a political position.
It’s not non-partisan. It scarcely pretends to be non-partisan.
The Secretary Will Disavow Any Knowledge Of Your Actions
What does it look like to have a leadership position in this organization? One might think it involves being selected to a post with some sort of… I dunno… title of responsibility. But whenever the Federalist Society gets in trouble and the outer shield of “non-partisan debate society” begins to collapse, the membership scurries away from titles like they’re made out of free and fair elections.
We’ll get to the second point in a minute. As for the first one, what non-sensical semantic complaint has he locked onto here? In Wallace’s article, he points to “Federalist Society officers” only once, to say that a member of the Executive Committee of one of the organization’s practice group and the Pittsburgh chapter head were “officers.”
That’s certainly what a normal person reading the situation might call them. But if they’re not the specific individuals listed on the Articles of Organization this is a semantic error of the highest order, sir! One that surely undermines every other evidenced and warranted claim in the article.
“Are you rebuking the liar?” Good heavens what a dramatist. There’s never anyone behind the curtain with these people.
But this response also sets up the next major theme.
Look… We Got SO MANY Good Ones Too!
Jonathan Adler, recently off whiffing his effort to defend Trans skepticism based on an internal org chart, enters the fray to defend the organization’s lack of moral compass as a matter of its big tent principles.
And an allusion to cancel culture for the “and-1”! Still, like a tree falling in the woods, if you’re being critical from within an organization that renounces any accountability… is really a thing?
Because of these shared principles, many Federalist Society members courageously rejected Trump’s attempts to overturn the election. Across the country, dozens of Republican-appointed judges, including many of Trump’s own appointees, dismissed meritless election lawsuits. Off the bench, former appellate Judge J. Michael Luttig, Vice President Pence’s attorney Greg Jacob, and Berkeley law professor John Yoo all advised Pence that he could not unilaterally reject duly certified electoral votes. Based on the Constitution’s clear text, they convinced Pence that he had no such authority.
Hm. Unfortunately for him, Wallace came with receipts:
Most notorious among the lawsuits that sought to overturn the 2020 election was Paxton’s challenge to the voting procedures of four other states, an unprecedented legal maneuver that was summarily rejected by the Supreme Court. Of the 17 attorneys general who joined Paxton in that widely ridiculed effort, 13 are affiliated with the Federalist Society.
Other lawsuits challenging the election filed by Federalist Society officers include Stoddard v. City Election Commission, filed by Edward Greim, a member of the Executive Committee of the Federalist Society’s “Free Speech & Election Law Practice Group”; and Kelly v. Pennsylvania, filed by Gregory H. Teufel, who heads the organization’s Pittsburgh chapter.
Because identifying just how far a specific member is willing to take it misses the point in two ways. First, we wouldn’t even be at this point if we hadn’t watched the Federalist Society carry out its decades-long mission of nurturing the academic justification for undermining voting rights.
Second, and more importantly, the existence of dissenting members fundamentally misunderstands what the Federalist Society even is. Which we’ll address in the next point…
Well, What About Black Lives Matter?
Well, just for an example, it sucks. Putting aside the racial baggage getting hauled in here, maybe one distinction could be that believing that “Black Lives Matter” is a principle and the Federalist Society is a heavily funded organization of academics, law students, and legal professionals. I guess this is why they also like to cosplay as a movement without any hierarchy despite all the officers, but as we already discussed, that rings hollow.
The analogy would be more apt if we replaced “Federalist Society” with “Originalism” — it’s just as morally bankrupt but at least it’s a loosely defined cause. Supporting the Federalist Society is not a principle, it’s a club, and a club that uses your goodwill to advance bad apples. You could just as easily quit and continue writing books about how child labor was awesome without lending your reputation to this project.
If you’re in the organization knowing this, then you’re a bad apple too.
And that’s it. We’re not political, no one is responsible for anything, we can’t be held accountable for anything we condone, and look… you’re just as bad. Every single time. There will be another controversy soon enough. I don’t know what it’s going to be, but somewhere between using slurs in an event description and defending forced sterilization of the poor, there’s going to be something. And then this whole cycle will fire itself up again.
Lather. Rinse. Repeat.
Boycott the Federalist Society [Slate]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.