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

• Date: 29 April 2013
• Published date: 29 April 2013
• DOI: https://doi.org/10.1108/S1059-4337(2013)0000061008
• Pages: 137-178
• Author: Amanda 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