Politico laments and envies the Federalist Society's success

I thought this Politico article was well written although from the progressive perspective and interesting on many levels - including openly identifying 'our side's' most potent weapon. If only 'our side' would figure it out too and embrace it to it's fullest....




A second explanation is that the Federalist Society has a more natural base of big donors. “Their work aligns with corporate America much more neatly than ours does,” Fredrickson says. The Federalist Society receives significant funding from libertarian industrialists, including the Koch brothers, Richard Mellon Scaife’s foundation and the Mercer family. Those donors like the broad hands-off legal philosophy the Federalists espouse. Liberals, by contrast, are more inclined to be attached to individual social causes, Fredrickson says, and left-leaning philanthropy tends to be “short-term performance based.” Conservatives, she says, “have an interest in funding infrastructure.”

The most significant reason for the disparity, though, runs deeper and poses a daunting challenge for the left. Since its conception, the Federalist Society has had one consistent and very graspable ideological backbone: that the Constitution should be interpreted as having the meaning it had when it was enacted. So-called originalism gives the Federalists a catchy intellectual hook. The agents of change in American law, they argue, should be legislators, not judges; that’s how the Constitution intended it. Hence the famous proclamation of Justice Antonin Scaliathe first faculty adviser to one of the Federalist Society’s founding chapters at the University of Chicago—that the Constitution is “dead, dead, dead.”

The Federalists’ mantras are succinct and understandable: The law should be neutral. It is the duty of the judiciary to say what the law is, not what it should be. Whatever its theoretical weaknesses, says Columbia Law School’s Jamal Greene, “originalism’s simplicity is one of its chief selling points.” And in the abstract, it’s widely popular: In one study by Greene and his colleagues, 92 percent of people expressed support for the idea that a good Supreme Court judge should “uphold the values of those who wrote our Constitution two hundred years ago.”


Standing behind the original meaning of the Constitution gives the Federalists a deeply appealing claim to a neutral, timeless American tradition. It is also complete nonsense, according to scholars who’ve looked at the rulings of “originalist” judges: Those judges tend to issue politically conservative rulings regardless of the larger principles at stake. Judge Richard Posner, no liberal, has ridiculed Scalia’s claim that originalism and the related doctrine of textualism offer greater certainty than competing principles, such as interpreting the Constitution as an evolving document. Originalism, for all its pretenses, is no more than a fig leaf for injecting politics into the judiciary.

Judicial neutrality may be a fiction, but it’s a useful one—and an idea for which liberals just haven’t found a response. The Federalist Society’s claim that the law should be agnostic on policy consequences is seductive to law students and lawyers; the invocation of the Constitution gives it rhetorical roots in the foundations of the Republic. What do liberals have to offer on their side?

One of their counterweights is law school itself: There’s no question that law school faculties are overwhelmingly liberal, but when it comes to delivering results on the federal bench, the academy is not the same thing as an organization with a focused mission and a budget. The ACS has a mission, true, but it can be a little hard to pin down. Its website says the organization “works for positive change” on “important legal and constitutional issues including access to courts, voting, equality, and many other issues directly affecting people’s lives.” As judicial philosophies go, it couldn’t be more diffuse. And the focus on outcomes rather than first principles immediately colors it with politics.

But the liberal legal academy hasn’t come up with an easily digestible rival idea, or a readily comprehensible way to demonstrate to the American people that the idea of “fidelity to the Constitution” means less than the politics of the judge who professes it. This failure makes it hard to mount an effective case against conservative nominees who proclaim their commitment to impartiality before the Senate, and it also has hindered the left in doing the institution-building needed to assemble a deep bench of potential future progressive nominees. Becoming a judge is a time-consuming exercise in networking, and the Federalists are known both for their roster of wide-open debates and events, and their clubby dinners afterward. Where is the network for prospective progressive judges to burnish their credentials, and what’s the principle it would be built around?

The problem, of course, is also endemic to liberal politics, which tends to traffic in the rhetoric of identity and outcomes, while conservatives prefer the language of first principles (which, conveniently, lead directly to their preferred outcomes). That difference is hardly superficial. Even if there were “ACS judges,” what would be the principle to unite them? Progressive law students—and deep-pocketed donors—need to know that 20 years from now, when the news has changed and left-leaning politicians are embracing a whole new suite of favorite policies, that they will have a core jurisprudential principle around which to rally.

Maybe that core principle is impossible to articulate, and there’s nothing for progressives to do but play defense by showing the hypocrisy of originalism. Or maybe there’s an answer out there—a rallying cry for progressives. If there is, it couldn’t come a moment too soon. The balance of the Supreme Court is hanging by the slenderest of threads.


 if only... common sense would finally prevail on 'our side' we'd win easily.   ...but the party/politicians aren't gonna do that willingly, the ongoing partisan fighting is more lucrative in both power and money. In the end we all have to make individual decisions to be principle-ly adamant about it - on every issue, and not get distracted into making it all about partisanship. ...and then we win, easily.

( a couple secondary notes =

              . notice how he transitions from using 'liberal' to 'progressive' in the final paragraphs. THERE IS A DIFFERENCE, progressives aren't liberal at all in reality.

               . notice that political parties aren't the focus, progressives are and they're prominent in both parties.)

--- the 1st half is worth the read and enhances the 2nd half above

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