Vol. 26 No. 8 (December 2016) pp. 160-164
IDEAS WITH CONSEQUENCES: THE FEDERALIST SOCIETY AND THE CONSERVATIVE COUNTERREVOLUTION, by Amanda Hollis-Brusky. Oxford University Press, 2015. 252pp. Hardback $29.95. ISBN: 978-0-19-938552-2.
Reviewed by Brandon L. Bartels, George Washington University. Email: firstname.lastname@example.org.
Amanda Hollis-Brusky’s award-winning book sets out to explain how the Federalist Society (FS) has exhibited influence in key areas of the law ultimately decided by U.S. Supreme Court.1 To orient her inquiry, Hollis-Brusky develops a compelling conceptual and theoretical framework centering on what she calls “political epistemic networks” (PENs), of which the FS is an exemplar. Adapted from the “epistemic community” (EC) concept in international relations, a PEN is “an interconnected network of experts with policy-relevant knowledge who share certain beliefs and work to actively transmit and translate those beliefs into policy” (pp. 10-11). Network members share: (1) normative beliefs/principles; (2) causal beliefs regarding how to achieve those goals; (3) shared notions of validity (the “right” interpretation of contested texts); and (4) a unified policy vision. The corresponding elements for the FS specifically are: (1) “the State exists to preserve freedom;” (2) the separation of governmental powers is central to the Constitution for achieving this principle; (3) “originalism” is the only valid methodology for constitutional interpretation; and (4) implementing conservative and libertarian values into law.
The book draws an important distinction between ECs and PENs based on the nature of knowledge accumulation and transmission. ECs are scientifically-oriented; most claims about science are evidence-based and refutable (or falsifiable), meaning an EC is replaceable based on objective evidence. For PENs related to law, [c]laims to legal knowledge are non-refutable, politically contested,” and essentially subjectively oriented (p. 10). In addition, a PEN differs from a traditional interest group because it does not engage in direct lobbying as an organization per se. Yet it is more influential than a typical “audience,” from Baum’s (2006) perspective, that might exhibit more “psychological constraint” due to a judge or political actor being mindful of an audience when making decisions.
A PEN in general, and the FS in particular, is ultimately a powerful influence in law and/or politics because it lays down the intellectual capital for a variety of issues that individuals in positions of power draw on when those issues appear on their agenda. A PEN legitimizes ideas that were previously thought to be outside the mainstream by elucidating theoretical and doctrinal foundations for those positions. In addition, a PEN seeks to vet individuals to make sure they are true believers before they gain admission to the club. They seek to put those vetted network members into positions of power and influence in order to procure constitutional and policy change. The FS has been quite successful on these fronts, due to the reach of their network to law schools (students and professors), judgeships, clerkships, think tanks, and government. True to the book’s title, the FS is in the “ideas” business, developing and disseminating legal philosophies and doctrinal ideas with the hope that they will have the ultimate “consequence”—being adopted by the U.S. Supreme Court.
After the theoretical chapter, the core of the book’s argument and evidence centers on Parts I and II. Part I assesses the FS’s influence on preserving freedom via the individual right to bear arms (Chapter 2) and campaign finance (Chapter 3). Part II focuses on separation of governmental powers (primarily federalism) via key Commerce Clause cases (Chapter 4) and the Tenth Amendment (Chapter 5). Part III (Chapter 6) focuses on broad processes by which the FS has influenced the “conservative counterrevolution” on the Supreme Court. [*161]
As I read the introduction and Chapter 1, I was thinking that the book’s ultimate success would turn on an intricate demonstration of the process by which the FS’s ideas and intellectual foundation have infiltrated and filtered their way up to official ranks of power, including the Supreme Court. It’s the “how” that drives the scholarly contribution. In my opinion, the book mostly succeeds on that front, but I do have some ideas on how the book could have crystallized the story, which also provides feedback for the future direction of this research agenda. My comments below center on: (1) the nature of FS influence and how it is demonstrated; and (2) the validity of the phrase, “conservative counterrevolution.”2 On the whole, the book stimulated a great deal of thought, and I believe it will do the same in the intellectual community—both in political science and the legal academy.
1. Tracing the FS’s Influence. Hollis-Brusky presents an interesting method for “tracing the influence of the FS on the conservative counterrevolution” (to paraphrase a heading from p. 23). The book’s goal in Chapters 2-5 is to track this influence up through the ranks—from the FS network to the lower courts to the legal academy to amici curiae in Supreme Court cases to lawyers representing the litigants in the Court all the way up to clerks and justices on the U.S. Supreme Court. The author uses a diagram to illustrate this traced influence—it is first introduced on page 26 and subsequently used in Chapters 2-5. Hollis-Brusky’s method is to count how many FS “network members” are in each of these key roles for crucial cases in the four legal areas. Network members are categorized as those who have made presentations at FS meetings. The author takes great care in preempting concerns about this measure, and she makes a good justification for its use over alternatives.
On the whole, I would have preferred a more full-fledged and comprehensive illustration of network influence on doctrinal change in Chapters 2-5, including a more systematic connecting of the dots regarding network influence. Some chapters and aspects are more systematic than others. Since there is so much lore around FS influence, the key to a book like this is to give the reader unique information and original knowledge that we did not already know. The book does effectively show how certain FS-originated ideas percolate up to the Supreme Court. Examples include Justice Scalia adopting ideas from legal scholar and FS network member Eugene Volokh in the D.C. V. HELLER ruling. Another nice illustration is how Chief Justice Roberts and Justice Alito—both FS network members—switch to the more comprehensive “Barnett-Epstein-Thomas” model of resolving constitutional matters in a grand fashion in the landmark CITIZENS UNITED case. Previously, these justices adopted the more the more restrained “Wilkinson” model of resolving the case at hand and declining the comprehensive solution. This is also a nice illustration of the internal competition of ideas and approaches in the FS and how they are played out in the courts. A final example involves Justice Thomas’s subscription—in a concurring opinion in MCDONALD V. CHICAGO—to the FS’s revival of the idea of using the Fourteenth Amendment’s Privileges and Immunities Clause, instead of the Due Process Clause, to incorporate the Second Amendment to the states. While the four other justices in the majority adopted the usual Due Process Clause method of incorporation, Justice Thomas’s full-throated adoption of the FS-infused idea of using the Privileges and Immunities Clause is quite remarkable.
Examples of where the book could have presented a more comprehensive approach to tracing network influence would be to focus specifically—and consistently across chapters—on key paths of influence from the network to the each of the relevant boxes (or a subset) in the schematic of network influence. One area that could have received more attention is the impact of the FS network on the selection of law clerks at the Supreme Court, following work by Ditslear and Baum (2001; see also Baum and Ditslear 2010), as well as a stronger story of the influence of FS clerks more broadly (in the tradition of Peppers 2006; Ward and Weiden 2006). Another way to demonstrate influence more systematically is examining the extent to [*162] which the Court, in its rulings, adopted ideas and language from lower court justices (from their opinions) and lawyers (from their briefs for the litigants) who were FS network members (a la Corley, Collins, and Calvin 2011; Corley 2008). This would build on what the book does (discussed via the examples in the prior paragraph) but in a more direct and perhaps systematic manner. This latter feedback may be more of a suggestion for future work on the topic.
Another way of showing FS network influence would be to focus more on variations in the number of network members populating the various nodes and then examining how high versus low capacity for network influence affects Supreme Court outcomes and doctrine. Some examples emerge in the free speech and campaign finance domain. Were the doctrinal changes that occurred from MCCONNELL V. FEC to WISCONSIN RIGHT TO LIFE to CITIZENS UNITED a function of a more increased and intense FS network influence? To what extent could one show that increased FS network influence brought about more conservative/libertarian change on this issue that was important to the FS? The same approach could be applied to the arc of Commerce Clause doctrinal change (Chapter 4) from NEW YORK V. U.S. to LOPEZ to MORRISON to RAICH. How does the increase and intensity of the FS network in key nodes of influence matter specifically for doctrinal change in this area? Figure 4.1 on p. 105 does show a low capacity for FS influence in the NEW YORK case. Those numbers increase by LOPEZ.
Moreover, Chapter 4 does seem to skim over the impact of RAICH, which has been viewed to signal a retreat by the Court on more conservative Commerce Clause interpretation. And network member Justice Scalia was the one who changed course. While the final chapter does discuss FS disappointment with Justice Scalia concerning his RAICH switch, I would have preferred a more in-depth analysis of this case, particularly since the capacity for FS network influence was probably quite robust in that case—perhaps more so than in LOPEZ and MORRISON. This issue also gets to a potential drawback of the book’s case selection strategy, which involves selecting areas where doctrinal change occurred in the direction favored by the FS. To augment this selection strategy, the book could have also chosen cases or issues where the FS sought to influence outcomes but was unsuccessful. Related, and discussed previously, the book could have explained doctrinal change (capturing change in the conservative and liberal direction) as a function of low versus high network influence capacity. While the book, as is, focuses on the “how” of FS network influence, this augmented selection strategy would hone in on the “why” of FS influence as well. In areas where it sought to influence outcomes, why was the FS influential in some cases or areas but not in others? Perhaps such an examination could be applied to LOPEZ /MORRISON versus RAICH.
2. “Conservative Counterrevolution.” Another topic that I thought could have received more attention and detail is the use of the phrase, “conservative counterrevolution.” While Hollis-Brusky discusses FS network influence in a confined set of issues, the book stops short of specifying appropriate scope conditions for the argument. When the book uses this phrase, it gives the appearance of generalized FS influence on a contemporary Court that is quite conservative across the board. I would have preferred a more careful couching of the conclusions to more specific conditions, as well as a more toned-down description of the Court’s contemporary ideological tenor (see below). One possibility would have been to highlight to a greater extent that the FS seeks to influence certain parts of the law and leaves others, including some big social issues, alone. The FS cannot do everything. I think the issues the author examines—federalism, Second Amendment, and campaign finance—capture the core of the areas the FS seeks to influence. In these areas, one could certainly say that the ideas developed and disseminated by the FS network have had an impact on the state of the law, and Hollis-Brusky demonstrates the broad contours of that impact.
Two additional points are worth making. First, the extent of a sustained conservative [*163] counterrevolution on these particular issues in the medium to long term remains to be seen. And in fact, on Commerce Clause jurisprudence, it seems like we have witnessed a sort of stall, with RAICH ending momentum that was generated by LOPEZ, MORRISON and others. In addition, while the Medicaid expansion portion of the ACA/health care ruling was a victory for the FS, the Court’s upholding of the individual mandate presented a major blow to core FS principles, due in part to one of its core members, Chief Justice Roberts, joining the liberals on that issue. While there were five votes to strike down the mandate on Commerce Clause grounds, there are some who think Chief Justice Roberts was simply hesitant to strike down President Obama’s signature domestic achievement, let alone in a presidential election year in which the Court would have been thrust into the political thicket. In other words, his vote was more political strategy and less FS-centered principle. He was intent to find some constitutional means of upholding the ACA, and the tax clause was the path of least resistance. And he was still able to throw a bone to conservative audiences since he was willing to invalidate the mandate on Commerce Clause grounds.
Second, the so-called “conservative” contemporary Court has actually been quite good to many liberal and progressive causes, a point I have tried to make in prior work (e.g., Bartels and Johnston 2013; Bartels 2015). The contemporary Court has issued its fair share of significant and influential liberal rulings in highly salient cases; by some measures, the Court has generated more liberal than conservative rulings in salient cases (e.g., Bartels and Johnston 2013). While the Court has been conservative on several issues—namely, the ones discussed by Hollis-Brusky—a Court that was at the forefront of a “conservative counterrevolution” certainly would not have issued so many significant liberal/progressive rulings. This balance in conservative and liberal outcomes is the result of the Court being very closely divided—the four liberals stick together in big cases, and on occasion, they pick off Justice Kennedy (and in the past, Justice O’Connor as well). On the whole, I think the book should have assigned the phrase “conservative counterrevolution” to a more specific set of issues rather than connoting this phrase applies to the contemporary Court writ large.
In sum, this book represents a solid contribution to the literature. And it contributes to a wide array of sub-literatures in the law and courts realm. Outside of law and courts, it should also be valuable to scholars who study social movements and political mobilization. My comments above represent opportunities for future inquiries that can build on the important work done by Hollis-Brusky. Her work has set the stage for an exciting and continued research agenda on how and under what conditions political networks like the FS can influence legal outcomes.
1 In 2016, the book won the APSA Law and Courts Section’s “C. Herman Pritchett Award” for best book in Law and Courts.
2 I also have some thoughts on the book’s treatment of “originalism” as the FS’s preferred methodology. Some of these thoughts are beyond the scope of the book’s inquiry, however, and involve several additional topics.
Bartels, Brandon L. 2015. "The Sources and Consequences of Polarization in the U.S. Supreme Court." In AMERICAN GRIDLOCK: THE SOURCES, CHARACTER, AND IMPACT OF POLITICAL POLARIZATION, ed. James A. Thurber and Antoine Yoshinaka. New York, NY: Cambridge University Press.
Bartels, Brandon L., and Christopher D. Johnston. 2013. "On the Ideological Foundations of Supreme Court Legitimacy in the American Public." AMERICAN JOURNAL OF POLITICAL SCIENCE 57(1): 184-199.
Baum, Lawrence. 2006. JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON [*164] JUDICIAL BEHAVIOR. Princeton, NJ: Princeton University Press.
Baum, Lawrence, and Corey Ditslear. 2010. "Supreme Court Clerkships and 'Feeder' Judges." JUSTICE SYSTEM JOURNAL 31(1): 26-48.
Corley, Pamela C. 2008. "The Supreme Court and Opinion Content: The Influence of Parties' Briefs." POLITICAL RESEARCH QUARTERLY 61(3): 468-478.
Corley, Pamela C., Paul M. Collins, and Bryan Calvin. 2011. "Lower Court Influence on U.S. Supreme Court Opinion Content." JOURNAL OF POLITICS 73(1): 31-44.
Ditslear, Corey, and Lawrence Baum. 2001. "Selection of Law Clerks and Polarization in the U.S. Supreme Court." JOURNAL OF POLITICS 63(3): 869-885.
Peppers, Todd C. 2006. COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK. Palo Alto, CA: Stanford University Press.
Ward, Artemus, and David L. Weiden. 2006. SORCERERS' APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT. New York, NY: NYU Press.
CITIZENS UNITED V. FEDERAL ELECTION COMMISSION, 558 U.S. ___ (2010).
FEDERAL ELECTION COMMISSION V. WISCONSIN RIGHT TO LIFE, 551 U.S. 449 (2007).
MCCONNELL V. FEDERAL ELECTION COMMISSION, 540 U.S. 92 (2003).
MCDONALD V. CHICAGO, 561 U.S. 742 (2010).
NEW YORK V. U.S., 505 U.S. 144 (1992).
GONZALES V. RAICH, 545 U.S. 1 (2005).
U.S. V. LOPEZ, 514 U.S. 549 (1995).
U.S. V. MORRISON, 529 U.S. 598 (2000).
© Copyright 2016 by author, Brandon L. Bartels.