The conservative influence of the Federalist Society on the Harvard Law School student body.

• Author: Hicks, George W., Jr.

1. INTRODUCTION II. "YOU HAD TO HAVE A SENSE OF HUMOR ABOUT IT": CONSERVATIVE PRECURSORS TO THE FEDERALIST SOCIETY AT HARVARD LAW SCHOOL A. The Demise of the "Conservatizing Milieu" B. The Republican Club C. The Rehnquist Club D. The Harvard Society for Law & Public Policy and the Harvard Journal of Law and Public Policy III. "IT SEEMED LIKE THE OBVIOUS THING TO DO": THE FOUNDING OF THE NATIONAL FEDERALIST SOCIETY A. Yale and Chicago B. The First National Symposium C. Creating a National Organization IV. "THERE'S NO ROOM FOR A CONSERVATIVE ORGANIZATION AT HARVARD LAW SCHOOL": FORMATION AND EARLY YEARS OF THE FEDERALIST SOCIETY AT HARVARD LAW SCHOOL A. The First Group B. The Harvard Atmosphere C. Early Activities and Early Reactions V. A "DECLARATION OF WAR"" THE HARVARD CLUB PANEL A. The Buildup B. The Debate C. The Aftermath D. A Leader Emerges VI. "You CANNOT OVERSTATE ITS IMPORTANCE": THE RIGHTWARD SHIFT OF THE STUDENT BODY AT HARVARD LAW SCHOOL A. Has There Been a Shift in the Student Body? 1. Professors' Views 2. The Harvard Law Review 3. The Harvard Law Class of 2007 B. Reasons for the Rightward Shift in the Student Body 1. External Factors 2. HLS-Specific Factors a. The Role of Dean Robert Clark b. The Role of the Current Federalist Society VII. CONCLUSION VIII. APPENDIX "Conservative students at Harvard Law School are a tiny and beleaguered minority."

   --Professor Paul Bator, 19851

   "I love the Federalist Society."

   --Dean Elena Kagan, 20052

1. INTRODUCTION

   Reasonable minds may disagree on any number of legal issues, but when discussion turns to legal institutions, one proposition appears almost incontrovertible: Harvard Law School (HLS) is a "bastion" of liberalism. (3) Or so public perception would have it: On television (4) and in newspapers, (5) the image of Harvard Law School as a repository of left-leaning individuals and ideas is nearly unshakeable. Harvard Law is popularly viewed as part of the "liberal establishment," (6) a place of learning where "[o]ne opinion exists ... and that is the liberal opinion." (7) This belief is reinforced by the ubiquitous presence of high-profile liberal professors like Laurence Tribe (8) and Alan Dershowitz (9) in courthouses, on briefs, and before cameras, and by the headline-generating acts of alumni now serving as elected government officials, including Eliot Spitzer '84, the scourge of corporate titans as Attorney General of New York; Barney Frank '77, the leading voice for gay rights in the U.S. House of Representatives; and Charles Schumer '74, the thorn in President George W. Bush's side on the Senate Judiciary Committee. In addition, the law school is but one component of Harvard University, which has garnered its own revealing moniker, the "Kremlin on the Charles." (10) And while it is a stretch to characterize Harvard Law School as the Red Square to the University's Kremlin, even that most poised of publications, The Economist, recently referred to Harvard Law as the "command centre of American liberalism." (11) As popular sentiment would have it, then, Harvard Law School is utterly, indisputably, and almost monolithically leftist.

   Despite this outward reputation, however, a quiet transformation has been taking place at Harvard Law School over the past several decades, the manifestations of which now challenge long-held assumptions about the institution's supposedly skewed ideological makeup. The trend, largely unnoticed by commentators and observers but borne out by both anecdotal and empirical evidence, is this: Conservatism has slowly but surely been making significant inroads among Harvard Law School students. Not only has a sizable and vocal conservative minority emerged within the student body in recent years, but also, and more consequentially, a broader rightward shift of ideological sentiments among the HLS student body as a whole has taken place. Put another way, looking back at the past thirty years, not only are there now more conservative students at Harvard Law School, and not only are those conservative students more vocal but the ideological beliefs of the average HLS student are now also more conservative. Both the mean and the median student have moved toward the right.

   Moreover, these developments are attributable almost entirely to factors intrinsic to Harvard Law School. It is true that the average American has become slightly more conservative over the past three decades, (12) and law students drawn from a national pool would be expected to reflect this trend to some degree. The national trend, however, is much weaker than the student trend documented in this Article; the more marked increase in the conservatism of the HLS student body is due to matters affecting Harvard Law in particular. Changes to the administration and faculty, for example, have significantly driven this transformation. Yet there remains an additional element antecedent to these personnel changes--indeed, a motivating force behind them--that has played a crucial role in prompting and fostering the rightward shift of the student body: the formation and rise of the Federalist Society at Harvard Law School.

   The Federalist Society is a national organization of law students and legal practitioners that describes itself as "a group of conservatives and libertarians dedicated to reforming the current legal order." (13) Driven by the belief that "[l]aw schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society, (14) the Society is "committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." (15) The Society "seeks to promote awareness of these principles and to further their application through its activities." (16) It features student and lawyer divisions, with student chapters at approximately 180 law schools, (17) including Harvard.

   Much ink has been spilled over the national Federalist Society's role within the current Bush administration--among other things, its perceived influence on cabinet members, Department of Justice officials, and judicial appointees. (18) But it is the Harvard Law School chapter of the Federalist Society that this Article seeks to explore. Specifically, this Article is an examination of the formation and early years of the Federalist Society chapter on the Harvard Law School campus and its role in bringing about a changing of the ideological guard at the law school. This Article explores the ideological atmosphere that had developed at Harvard Law School by the late 1970s and early 1980s; the approaches by which conservative students during those times attempted to provide an alternative voice to the overwhelmingly liberal environment of the era; the extent to which one group of conservative students, the Society for Law and Public Policy--now the Harvard Federalist Society--succeeded in triggering a counterreaction to the dominant beliefs of the time and reorienting the ideological direction of the school; and the effects of these actions on the law school, including conservative-friendly personnel changes and, ultimately, a rightward shift in the beliefs of the HLS student body. Twenty-five to thirty years ago, conservative students at Harvard Law were ideological outliers who struggled to gain credibility in class and acceptance on campus. Today, the Harvard Federalist Society is one of the most prominent voices at the law school, an organization that sports a well organized, well established presence on campus. Thus, while it is far too soon to refer to Harvard Law School as a bastion of conservatism, it is no longer accurate, because of the efforts of conservative students both past and present, to continue reflexively to associate Harvard Law School with unadulterated liberalism.

   Before continuing, a preliminary word on this Article's use of "conservatism" is necessary. Admittedly, it is a catch-all term, and bifurcating ideas and individuals into "conservative" and "liberal" categories is a rough division at best. One framework that may be helpful going forward is a three-strand structure that Professor Richard Fallon has elaborated in scrutinizing the "conservatism" of the Supreme Court. (19) Professor Fallon identifies three types of conservatism: substantive conservatism, methodological conservatism, and institutional conservatism. (20) It is this first type of conservatism, substantive conservatism, that this Article generally means to evoke when using the term "conservative." Substantive conservatism generally means an outlook disfavoring the criminally accused and civil rights-civil liberties claimants; favoring takings claimants; and adopting positions that are anti-union, pro-business, anti-liability, and anti-injured person. (21) Fallon admits this definition is "obviously crude" and further subdivides "self-identified political conservatives" into "libertarians, who generally believe that that government governs best which governs least, and social conservatives, who favor governmental regulations to protect traditional values and structures." (22) Although the principles of those two groups may often seem at odds with each other, an underlying thread does unite them. As Professor Robin West has written,

    Conservative political theory ... is united by its antipathy to state normative authority

   and preference for social authority.... [S]ocial conservatives urge the state to defer to the visions of the good embedded in a community's moral institutions; ... free-market conservatives locate normativity in the outcomes generated by and the preferences

   reflected in economic markets. [Both], however, view these forms of authority as importantly higher or better than the normative

   authority of "the state." (23)

   Although...