How a Handful of Law Students in 1982 Changed the Federal Courts

It endorses no candidates. It does not lobby Congress. It does not file lawsuits as a party, and it takes no official position on any legal or policy question. It mostly hosts debates and dinners. And yet when historians of the American legal system write about the last forty years, its name is on nearly every page. So much for the idea that power in Washington belongs to whoever has the biggest budget.

The Federalist Society is the story I want to tell today, partly because it is a good yarn and partly because it carries a lesson that every conservative, and everyone on the other side too, ought to learn: the long game beats the short game. The movement that reshaped the federal courts did not start with a presidential campaign or a billionaire's check. It started with a handful of law students who were tired of being the only ones in the room who believed what they believed. This is how it went, in order.

Spring 1982: three law schools and one big question

The setting is the early Reagan years, and the law schools of the day were, by most accounts of the people who attended them, overwhelmingly liberal. Students who thought the Constitution should be read by its text, who doubted that judges ought to run the country, who believed in limited government and the separation of powers, often found themselves arguing alone in seminar rooms. A group of them from Yale, the University of Chicago and Harvard, among them Steven Calabresi, Lee Liberman (now Lee Liberman Otis), David McIntosh and Spencer Abraham, decided to do something about it. Instead of complaining, they organized a conference.

The first national student symposium took place at Yale Law School in April 1982. They called the organization the Federalist Society for Law and Public Policy Studies, and the name tells you everything about the project. "Federalist" nodded at the Federalist Papers, the founding-era argument for a constitution of limited, separated powers. They invited serious faculty and judges to speak, including Robert Bork, then a professor and soon a federal appeals judge, and Antonin Scalia, then at the University of Chicago and about to join the D.C. Circuit. They did not start with a plan for a national network. They started with a room and an argument.

The founding principles, which the Society still states, are simple and fit on an index card: the state exists to preserve freedom; the Constitution establishes a government of limited powers with separate branches; and it is the judiciary's job to say what the law is, not what it should be. If that last clause sounds familiar, it should. It is a direct descendant of Marshall's line in Marbury v. Madison, which we explain in Marbury v. Madison and the Power the Supreme Court Gave Itself in 1803.

The format that built the brand: debate both sides

Here is the first clever thing about the organization, and it is a lesson for the whole movement. The Society does not hold rallies. It holds debates. Its signature event puts a conservative or libertarian speaker next to a liberal opponent, with a moderator, and lets them go at it. The Society as an organization takes no position on the legal questions its events discuss. Its members are free to disagree with one another, and they do, loudly.

Why does that matter? Because it is the one posture that earns respect in a law school. If you walk into a room of law students and say "here is the correct view," you're a lobbyist. If you walk in and say "here is a serious argument, here is the best case against it, you decide," you are in the business of education. The format made it easy for liberal professors and judges to show up, which in turn made it harder for deans and hiring committees to dismiss the group as a fringe. It also trained a generation of young lawyers to state their opponents' arguments fairly, which is exactly the skill the Court rewards.

The Society grew by putting student chapters in law schools and then adding lawyer chapters in cities, with an annual national lawyers convention. Law students joined, graduated, clerked and rose, and they carried the habit of mind with them. That is how a movement compounds: not by one big win, but by a steady stream of capable people.

July 1985: Meese raises the stakes

The next step came from inside the government. Edwin Meese III, who had served as counselor to President Reagan, became Attorney General in February 1985, and he made the courts a priority of the Justice Department. On July 9, 1985, he spoke to the American Bar Association in Washington and called for a "jurisprudence of original intention": judges should look to the original meaning of the Constitution and not to their own preferences. That was the agenda of the movement stated from the heights of the executive branch. (We explain what that idea means and how its defenders refined it in Originalism Explained for People Who Skipped Law School.)

Meese's speech touched off one of the great constitutional debates of the century. In October 1985, Justice William Brennan, the intellectual leader of the Court's liberal wing, answered at Georgetown University. He argued that the claim to know what the framers intended was a kind of "arrogance cloaked as humility," and that the Constitution's meaning must adapt to the times. Brennan's side of the argument, the living constitution, gets a fair statement in The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It. What matters for our story is that the argument was now public, at the highest level, and one side had a name for its position and an organization that could carry it into every law school in the country.

1986: Scalia goes to the Court

In June 1986, President Reagan announced that he would nominate Antonin Scalia, then a judge on the D.C. Circuit, to the Supreme Court. The Senate confirmed him in September 1986 by a vote of 98 to 0. (Yes, zero. It is a different era; our timeline of From 98 to 0 to Party Lines, a Timeline of Supreme Court Confirmations tells how confirmation votes went from near-unanimous to near-partisan.) Scalia became the most vigorous public advocate of original-meaning interpretation and of textualism in statutes, and he trained a generation of clerks. He also, as we have noted in Antonin Scalia Sided With Flag Burners and Defendants, and That Is the Point, did not always rule the way his critics predicted.

Four years after the founding students first assembled, one of their faculty heroes was on the highest court in the land. The point is not that the Society picked him; it did not. The point is that the ideas it championed had moved from the margins of the law school classroom to the center of constitutional debate in under a decade.

What the network actually does

It is easy to tell this story as if the Society were a secret machine. It's not, and getting that right is part of an honest account. What it does is quite ordinary. It brings together people who share a way of thinking about law, gives them a place to argue, and helps young lawyers find one another. When a President or a senator looks for a judge who reads the Constitution as written, the pool of candidates who have thought hard about those questions is bigger because the network exists. Nominations, however, belong to the President, and confirmation belongs to the Senate. The process, which we map in Every Step in Confirming a Federal Judge, from Vacancy to Oath, runs through elected officials, and the voters choose those.

One more lesson from the story: judges serve for life during good behavior, so a movement that invests in judges is investing in decades. A President serves at most eight years, a Congress two, but a judge appointed at forty-five may sit on the bench for thirty years or more. That is why the people who follow the Supreme Court closely also follow the age and health of the justices, and why retirement decisions are strategic. The Constitution gave judges a long horizon, and the movement that planned for that horizon gained from it.

The long-game arithmetic

Let me show you why the judiciary rewards patience, using a hypothetical so nobody mistakes it for a prediction. Picture a lawyer confirmed to a federal appeals court at age 45 who stays on the bench until age 75. That is 30 years of decisions. A President can serve at most two four-year terms, which is 8 years. Divide 30 by 8 and you get 3.75, meaning that one judge's service could outlast almost four presidencies' worth of time in office. Multiply that by hundreds of judges and you can see why people who care about the shape of the law think in decades, not news cycles.

Now stretch the lens back to the law students. A student who joined a chapter in 1982 and graduated in 1985 would be 40 or so by the 2000s, the age at which lawyers get considered for the bench, and a Supreme Court justice from that cohort might still be serving in the 2040s. A project that looks tiny at the start can reach across half a century. A political movement that measures success by next Tuesday's polls is playing a different game, and it usually loses to the one measuring in decades.

Why the idea needed an institution at all

An idea has a harder time in the wrong building. The conservative legal arguments of the early 1980s were not new; scholars had been making versions of them for years. What was missing was a home. A student who held an unfashionable view in a seminar had no one to talk to, no mentor to ask about clerkships and no sign that a career was possible. An organization solves that problem in a very practical way. It tells the lonely student that others exist, introduces the student to a judge who thinks the same way, and says, in effect, that this is a path people have walked.

That is a lesson for any movement, including the readers of this site. If you care about an idea, the most useful thing you can do is often not to shout louder but to build a place where its supporters can meet, argue and learn. A local reading group on the Federalist Papers, a county party meeting that spends an hour on a real policy question, a student group that invites a thoughtful opponent: these are small things, and the Yale symposium was one too.

The strongest objection: "It is a pipeline of power without accountability"

Let me give the critics their best argument. They say the Federalist Society has become something larger than a debating club: a powerful network that influences who gets nominated to the federal bench, funded by donors who aren't always public, and operating in a way that voters can't easily see. Even if it takes no formal positions, they argue, its members overwhelmingly share one outlook, and the influence is real. Why should one network have so much sway over a branch of government that is supposed to be above politics?

Here is my answer, in four points.

1. Every faction organizes, and the other side has its own network. The American Constitution Society was founded in 2001 to serve as a progressive counterpart. Liberal judicial movements have their own pipelines, journals and funders. Complaining about organization is complaining that the other side showed up with a plan.
2. The decisions are made by accountable people. A President chooses nominees. The Senate holds hearings and votes. A voter who dislikes a judge's record can blame the officials who put him there. The network proposes names, and the Constitution gives the decision to the elected branches.
3. The ideas are public, and the judges' reasoning is in writing. Anyone can read an opinion and test it against the text. If a judge's work is poor, it will show.
4. The honest complaint is about transparency, and that is worth debating. If critics want more disclosure of funding for all groups, left and right, that's an argument you can have on the merits. A conservative who believes in open debate has no reason to fear it.

What to take from it

The Society's story is a case study in patience. The students who gathered at Yale in 1982 could not have known that the ideas they were debating would shape the confirmation fights of the next four decades. They knew only that they had an argument, that they had to make it well, and that they had to find others who agreed. Many of the arguments that matter in politics are won that way: slowly, in rooms with bad coffee, by people willing to show up the next year and the year after.

If your own cause is losing, take heart. The people who were outnumbered in the law schools of 1982 did not win by yelling. They won by being better prepared and more patient than their opponents.

The bottom line

• The Federalist Society began in April 1982 as a student symposium at Yale, founded by students at Yale, Chicago and Harvard who wanted a serious place to argue for limited government, separated powers and a judiciary that says what the law is.
• Its debate-both-sides format and its refusal to take positions as an organization gave it credibility in a hostile setting, and it grew from student chapters to lawyer chapters across the country.
• Attorney General Meese's July 1985 speech and Justice Brennan's reply that October made the debate over originalism a national argument, and Scalia's appointment in 1986, confirmed 98 to 0, put its leading voice on the Court.
• Judges serve for life, so influence over the courts is a long game. If you want to shape the law, start with ideas, build a network of capable people and be patient.
• If you want to judge a nominee, read the nominee's own opinions and writings, not the labels. The record is public, and the Senate's job is to examine it.