“It’s the Network”: The Federalist Society as a Supplier of Intellectual Capital for the Supreme Court

Date29 April 2013
Published date29 April 2013
DOIhttps://doi.org/10.1108/S1059-4337(2013)0000061008
Pages137-178
AuthorAmanda Hollis-Brusky
‘‘IT’S THE NETWORK’’: THE
FEDERALIST SOCIETY AS A
SUPPLIER OF INTELLECTUAL
CAPITAL FOR THE SUPREME
COURT
Amanda Hollis-Brusky
ABSTRACT
This chapter examines the influence of the Federalist Society for Law and
Public Policy on some of the most important Supreme Court decisions of
the past three decades. Mobilizing the epistemic community framework, it
demonstrates how network members, acting as amici curiae, litigators,
academics, and judges worked to transmit intellectual capital to Supreme
Court decision makers in 12 federalism and separation of powers cases
decided between 1983 and 2001. It finds that Federalist Society members
were most successful in diffusing ideas into Supreme Court opinions in
cases where doctrinal distance was greatest; that is, cases where the
Supreme Court moved the farthest from its established constitutional
framework.
Studies in Law, Politics, and Society, Volume 61, 137–178
Copyright r2013 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000061008
137
‘‘Like Verizon, ‘it’s the network.’ ’’
— USD Law Professor and Federalist Society
Member Gail Heriot responding to a question
about Federalist Society influence.
1
In 1994 a group of legal scholars operating under the collective name
Academics for the Second Amendment submitted an amicus curiae brief to the
United States Supreme Court in United States v. Lopez (1995), a case that
challenged handgun regulations enacted under the Gun Free School Zones
Act of 1990. Though Lopez did not raise a Second Amendment challenge –
it was argued and decided on Commerce Clause grounds – the Academics
brief presented an argument supported by contemporary legal scholarship
for radically reinterpreting the Second Amendment’s right to bear arms as
an individual right. Three years later, in his concurring opinion in Printz v.
United States (1997) – a case that also did not implicate the Second
Amendment – Justice Clarence Thomas called attention to the scholarship
cited in the Academics’ brief with a near identical string-cite and mused
hopefully that ‘‘perhaps, at some future date this Court will have the oppor-
tunity’’ to align its Second Amendment jurisprudence with this ‘‘growing
body of scholarly commentary.’’
2
More than a decade later, Justice Antonin
Scalia relied on this same scholarship to construct and support the
majority’s ruling in District of Columbia v. Heller (2008), a revolutionary
decision that held for the first time that the Second Amendment’s right to
bear arms was an individual, not a collective right.
This opening vignette is illustrative of two things. First, it illustrates that
constitutional development is a long-term, iterative game. The intellectual
capital invested by the Academics in Lopez paid (very large) dividends
almost 14 years later in Heller. Second, it shows that ideas need agents or
networks of individuals to transmit them from civil society to decision
makers in government. In this case, four of the Academics who signed onto
the amicus curiae brief in Lopez, the Supreme Court Justice who highlighted
their brief in his concurring opinion in Printz, and four of the five Justices
who relied on their scholarship to support the majority opinion of the
Supreme Court 14 years later in Heller were all connected through a very
important civic and professional network – the Federalist Society for Law
and Public Policy.
Founded by a group of conservative and libertarian law students at
the University of Chicago and Yale Law School in 1981, the Federalist
Society has matured into a nationwide network of more than 40,000
academics, practitioners, judges, politicians, and law students dedicated to
restoring the values of the legal right to America’s institutions.
3
While it is
AMANDA HOLLIS-BRUSKY138
acknowledged by both friend and foe as an organization of consequence in
the contemporary American political context, the Society itself does very
little in terms of direct legal and political engagement. It does not lobby. It
does not sponsor or formally participate in litigation and it does not endorse
political candidates or take official policy positions. Instead, its focus has
been on training and shaping its members through intellectual engagement,
networking conservative and libertarian legal elites, and facilitating oppor-
tunities for its members to put their shared legal principles into practice
(Hicks, 2006; Scherer & Miller, 2009; Southworth, 2008; Teles, 2008).
Because of its role as the intellectual and professional hub of the
American legal right, the Federalist Society has been characterized as
the ‘‘cross-roads of the conservative movement’’ and an important part of
the ‘‘support structure’’ for legal change (Hollis-Brusky, 2011; Southworth,
2008, p. 148; Teles, 2008, pp. 11–12). While this scholarship has argued
convincingly that the Federalist Society should be understood as a pheno-
menon of sociolegal interest, it has yet to address directly the question
of Federalist Society influence. Has all this investment in professional
education and networking over the past 30 years paid dividends for the legal
right? The opening vignette would suggest that it has. I mentioned that
Federalist Society-affiliated academics provided scholarly support for the
individual rights view of the Second Amendment articulated by the Supreme
Court in Heller. I also mentioned that four of the five Supreme Court
Justices who voted with the majority in Heller were also Federalist Society
members. In addition, the two D.C. Circuit judges who wrote the opinion at
the Circuit Court level (Thomas B. Griffith and Lawrence Silberman) were
Federalist Society participants as was the individual who initiated and
financed the Heller litigation (Robert A. Levy).
Apart from simply having the Federalist Society credential, however, the
more important observation is that each of these participants in the Heller
litigation articulated a shared understanding of the Constitution, rooted in
the theory of Original meaning, expressed in a very particular language and
constructed through a shared canon of sources. It is this intellectual network
in action that this chapter examines. Specifically, this chapter examines the
extent to which and the conditions under which the Federalist Society
network has been effective in diffusing ideas and intellectual capital about
federalism and the separation of powers – two doctrines that encapsulate the
most fundamental and fusionist beliefs within the Federalist Society – into
Supreme Court opinions. It looks at 12 Supreme Court cases decided over the
last three decades and draws out in far greater detail the kinds of network
links I briefly sketched out with the Heller case. In doing so, it provides one
The Federalist Society as a Supplier of Intellectual Capital 139

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