by Michael Avery and Danielle McLaughlin. Nashville, TN: Vanderbilt University Press, 2013. 304pp. Hardcover $35.00. ISBN-13: 978-0826518774.
Reviewed by Salmon A. Shomade, Department of Political Science, University of New Orleans. Email: sshomade [at] uno.edu.
On November 21, 2013, the Democratic-led U.S. Senate voted 52-48 to exercise the “nuclear option” and changed the Senate rules for confirming executive and lower federal court judicial nominees. This vote effectively halted the filibuster on these nominations; the minority’s (Republicans) power to delay or block votes on nominees by requiring a supermajority of 60 votes for the nomination to move forward was ended. Many political analysts believe that the Democrats invoked the nuclear option because of Republican efforts to block three nominees to the United States Court of Appeals for the District of Columbia, considered the second most powerful court after the U.S. Supreme Court. In his remarks prior to the vote, the Senate Majority Leader Harry Reid said, “In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama Administration – during the last four and a half years. These nominees deserve at least an up-or-down vote.” Left unsaid by Senator Reid is the recognition that a President’s lasting legacy exists through the judiciary. According to Avery and McLaughlin, that recognition by conservatives was one of the chief reasons that precipitated the rise of the Federalist Society.
With THE FEDERALIST SOCIETY, Michael Avery, a law professor at Suffolk University Law School, and Danielle McLaughlin, an associate in the law firm of Nixon Peabody LLP, have written a book that describes the emergence of the Federalist Society as a significant force in today’s law and politics. The book traces the formation of Federalist Society as a small group of conservative law students in the 1980s. It tracks influential Federalist Society members’ “views as they are planted as intellectual seeds in law journals, germinate in legal briefs, and eventually blossom in court opinions, legislation, and public policy” (p.20). According to the Avery and McLaughlin, the success of the Federalist Society is evident on the account that the “current Supreme Court can generally be relied on to protect business interests against legislation designed to protect workers, consumers, and the environment; to halt the judicial expansion of personal liberty interests while expanding judicial protection of property interests; to interpret a ‘colorblind’ Constitution by rolling back affirmative action and school desegregation plans; to restrict access to the courts through a variety of procedural and substantive doctrines; and to weaken the boundaries between church and state” (p.20). Excluding the Introduction, THE FEDERALIST SOCIETY is divided into six chapters, two appendices (one explains how legal citations work while the other profiles major Federalist Society members and allies), the end notes, and the Index.
In the Introduction, Avery and McLaughlin summarize the aim of the book and how disaffected young conservative law school students at Yale and University of Chicago came together in 1980 to form a student organization that will later become one of the most influential conservative organizations in the land. Herein, they describe the efforts of these students and their mentors in these early years and explain that the Federalist Society’s phenomenal growth during the 80s was due in part to a conservative movement that had been gaining strength prior to the election of Ronald Reagan. They also assert that the movement benefited from a friendly administration and a Justice Department led by a strong ally, Attorney General Edwin Meese. In this introductory chapter, Avery and McLaughlin briefly discuss some of the information fully presented in later chapters. They also explain how Federalist Society members “have thoroughly infiltrated the executive and judicial branches [even if less] successful in getting elected to public office” (p.10). This chapter also illustrates Federalist Society’s growth and influence, provides some examples of its benefactors, and details its organization’s approach of accommodating various ranges of conservative and libertarian viewpoints, even if there are disagreements on specific legal issues.
The central thesis of the Federalist Society’s growth and influence can be found in Chapter 1 entitled “The Network”: “Since the early years of the [Federalist Society] in the 1980s, its members have believed that the easiest way to change the law is to change the judges. They have been phenomenally successful in doing so” (p.21). Avery and McLaughlin then detail how the Federalist Society’s long-term strategy of changing the judiciary, adopted since the beginning of the Reagan Administration, has resulted in netting four Federalist Society-friendly justices on the Supreme Court. Beyond the connection of Justices Scalia, Thomas, Alito, and Chief Justice Roberts to the Federalist Society, we also learn in this chapter how Federalist Society founders, from the moment they graduated from law schools, secured key positions in the White House and in the Justice Department during the Reagan, Bush I, and Bush II administrations.
Relying on empirical studies of judicial selection such as those of Sheldon Goldman’s, Avery and McLaughlin detail how Federalist Society members were maximally involved in the judicial selection process, especially during the President George W. Bush administration. They claim the Department of Justice (DOJ) under the Bush II administration became dominated by Federalist Society members, and that the hiring process became so partisan, that some employees complained to Congress in 2006. There were investigations which “concluded there had been improper political influence in hiring and other personnel decisions at the DOJ, including favoritism toward members of the [Federalist Society]” (p.36). Avery and McLaughlin end the chapter by citing additional empirical data indicating that the “[Federalist Society] strategy of changing the law by changing the judges is working” (p.43) as judges appointed by Republican presidents render more conservative decisions than those appointed by their Democratic counterparts. Furthermore, other empirical data indicate that “decisions reached by judges who are members of the [Federalist Society] demonstrated convincingly that such judges are significantly more conservative than nonmembers appointed by Republican presidents” (p.45).
In subsequent chapters of THE FEDERALIST SOCIETY, Avery and McLaughlin assess other activities of Federalist Society members on changing the law in a variety of areas. For example, in Chapter 2 entitled “Regulation of Private Property,” they trace how Federalist Society member Richard Epstein’s theory that “any governmental regulation constituted a compensable taking” (p.48, authors’ emphasis) has influenced the conservative movement’s trajectories on private property issues. According to Avery and McLaughlin, “Epstein’s theory was received as radical by many, including some in the conservative movement. It has become the linchpin, however, for conservatives’ deregulation efforts. In fact, it is difficult to overstate the power of Epstein’s theory and how far it has carried the organized Right in the past three decades” (p.48). In Chapter 3, Avery and McLaughlin describe how Federalist Society members have been successful limiting governmental regulation of business practices by using “a variety of strategies and doctrines to create obstacles to lawsuits that demand changes in public policy or that have a regulatory impact on private business” (p.75). They further explain how conservative commentators and philanthropists influenced tort reform prior to Federalist Society’s creation, starting from the Nixon administration, and how Federalist Society members continued to carry the torch during the administrations of Bush I and Bush II.
In Chapter 4, Avery and McLaughlin analyze various arguments that Federalist Society members have utilized to oppose race and gender-based affirmative action plans. They detail how Federalist Society members have tried to implement these arguments by “participating in conservative public interest law firms, supporting litigation to strike down affirmative action plans, working on public campaigns to restrict affirmative action programs, and securing key posts in government, including the judiciary” (p.100). In Chapter 5, entitled “The Jurisprudence of Personal Sexual Autonomy,” while admitting that Federalist Society members and other conservatives are not in total agreement on a constitutional ban on abortion, Avery and McLaughlin note that Federalist Society members have nonetheless pushed for conservative ideology in abortion law and policy. On abortion, Federalist Society members’ contributions tend to be in the form of developing legal theory, publishing ideas, working in coalitions, promoting legislation, and engaging in a myriad of other activities that will advance their ultimate goal. Avery and McLaughlin conclude this chapter by surmising that the Federalist Society members’ “work, and the work of those who share their vision, have significantly reduced access to the procedure, in particular for the poor” (p.168). In the last chapter of the book which focuses on “American Exceptionalism, Sovereignty, and International Law” (ch.6), Avery and McLaughlin concentrate on how Federalist Society members and the organization itself have changed the conversation about America’s role in the world by using similar tactics – scholarly pieces, speeches, amicus briefs, and so on. Federalist Society members tend to oppose the idea that international or foreign law should have some influence on U.S. constitutional law decisions.
Overall, Avery and McLaughlin have embarked on a very commendable effort with THE FEDERALIST SOCIETY and produced a book worthy of being read and placed on the bookshelf for future reference. For those looking for a one-stop shop to understand the influence of Federalist Society members on the federal judicial make-up and general information on how Federalist Society members have attempted and succeeded in shaping our laws, this is the book. The biographies of major Federalist Society members and allies in Appendix B are very useful in understanding the professional backgrounds of these players and in deciphering how they may have benefitted from their alliances with the Federalist Society. Liberals and institutions advocating progressive ideas and issues would, if interested in understanding the current judicial landscape, especially benefit from reading the book. However, for those readers attempting to understand the intricate details and the backroom stories of how Federalist Society members achieve their aims, they might have to turn to other sources. Avery and McLaughlin do not provide direct or individual accounts from any of the key players mentioned in the book. Such direct accounts from even a few players might have provided additional or unusual insight about the Federalist Society movement beyond what is likely available in the public sphere. Fortuitously, since the endnotes are detailed, extensive, and rich, those readers might look at some of those sources cited therein. Some critics might also quibble with the lack of empirical studies conducted by the authors themselves. But they do cite many empirical studies conducted by notable scholars, which might please those critics. Finally, at times, portions of the book read like a law review article, but that does not necessarily make the book less readable. In fact, the authors do a very good job of summarizing the focus of each chapter at the beginning and the end of each chapter. With the paralysis in Washington D.C. among the political elite, and less than successful efforts to break the gridlock, any reader interested in understanding some of the history behind the gridlock, or reasons sustaining it, will be best served to read THE FEDERALIST SOCIETY.
Copyright 2014 by the author, Salmon A. Shomade