In Ideas with Consequences: The Federalist Society and The Conservative Counterrevolution, Amanda Hollis-Brusky tells the story of the Federalist Society for Law and Public Policy Studies from its inception to its current dominant position in legal conservativism. The Federalist Society was established in 1982, during the presidency of Ronald Reagan, by libertarian and conservative law students and professors who felt alienated from the liberal academy. The Society formed “a formidable conservative and libertarian counter-elite” (p. 2) which articulated the following principles: “that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” The Society amassed considerable resources to support its campaign to transform these principles into law. Thanks in large part to noted conservative philanthropists including John Olin, the Koch family and Richard Scaife, the Federalist Society currently has an annual budget of over $10 million, and boasts 40,000 members. In this insightful and carefully researched book, Hollis-Brusky shows how the Federalist Society assembled a cadre of lawyers, judges, and lawmakers to provide the intellectual framework for constitutional transformation.
Ideas with Consequences is a detailed account of the Federalist Society strategy to convince the United States Supreme Court to overturn longstanding precedent and interpret the Constitution in accord with Federalist Society ideology. Members of the Federalist Society participated in litigation to revitalize the Second and Tenth Amendments, establish broad rights of corporations under the First Amendment, and limit Congressional power to regulate state governments. Most notably, Federalist Society lawyers supported the cases of DC v. Heller 2008 and McDonald v. Chicago 2010, in which the Court recognized an individual right to bear arms in the Second Amendment and found that right to be incorporated against state and local governments. Federalist Society lawyers led the partially successful challenge against the Affordable Care Act, convincing the Court to limit the scope of the provisions expanding Medicaid. Most importantly, they lay the groundwork for the Court's ruling in Citizens United v. FEC, enforcing the First Amendment rights of corporations to spend money on politics and ushering in the universe of Super PACs which currently pervade the political realm.
Hollis-Brusky shows how Federalist Society members aided this rightward shift in constitutional law. Her research includes 36 interviews of prominent Society members and other legal experts. She details how Federalist Society members represented parties in the above cases, helped attorneys who represented the parties, and wrote copious amicus briefs. Federalist Society professors lay the intellectual groundwork for these rulings in their academic writings, many of which were cited in Court opinions. They also spoke to the public in op-eds and media interviews, thus helping to shape the political debate. But most importantly, Federalist Society Justices served on the Court that issued the ground-breaking opinions. Then a law professor at the University of Chicago, Justice Antonin Scalia participated in the founding conference of the Federalist Society. Justices Thomas, Alito, and Roberts are also Federalist Society members, and they all hired law clerks who also belonged to the Society. As Hollis-Brusky explains, the Federalist Society does much more than merely espouse “ideas with consequences”—it provides a crucial structure for implementing those ideas.
Ideas with Consequences is a fascinating account of a political and legal revolution which have occurred hand in hand in the last three decades. The Federalist Society uses its money to fund numerous conferences and speaking events throughout the country and its prestige to further the careers of hundreds of conservative lawyers, law professors, and judges. But as Hollis-Brusky observes, “constitutional change is ultimately driven by electoral politics” (p. 152). The Federalist Society owes much of its success to the election of Republican presidents, especially Ronald Reagan and George W. Bush, who chose Federalist Society members for important judicial appointments. It is remarkable how closely the Society's constitutional agenda coincides with the political agenda of the Republican Party, from the right to bear arms to the campaign against the Affordable Care Act. Moreover, the Citizens United ruling enables Federalist Society supporters such as Richard Scaife and the Koch brothers to spend unlimited amounts of money to support presidential candidates who are likely to appoint more Federalist Society judges to the federal bench. Thus, the Society serves as what Hollis-Brusky calls as “political epistemic network.”
Hollis-Brusky's account is not a surprise to close observers of politics and constitutional law. However, this work of a political scientist should give pause to lawyers espousing doctrinal purity. Hollis-Brusky leaves the reader doubting the sincerity of the third tenet of the Federalist Society, “that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” Initially, Federalist Society members championed originalism as a constitutional method that would reduce judicial activism. More recently, originalism has served as the basis for the Court to overturn precedent and issue activist decisions such as Heller and Citizens United. Ideas with Consequences serves as exhibit number one not for originalism but for the progressive doctrine of legal realism. The Courts do follow the election returns, and constitutional interpretation, no matter the method deployed, is never devoid of politics.
Above all, Ideas with Consequences is about power—the strategic use of the political power and wealth of the Federalist Society. Hollis-Brusky's frank portrayal of how that power is exercised is a valuable addition to the literature on constitutional politics, much of which has focused on progressive constitutional movements. Like Sophia Lee's recent book, Reference LeeThe Workplace Constitution 2014, Ideas with Consequences provides a welcome glimpse into the politics of conservative constitutional change.
