From the LA Times:
November 11, 2005
latimes.com
THE NATION
Engaged in a Very Civil War
The Federalist Society has reshaped the legal system without ever going to court.
By David G. Savage, Times Staff Writer
WASHINGTON — It began in 1982 with a handful of law students at Yale and the University of Chicago who saw themselves as minorities. They were conservatives.As a counter to liberal orthodoxy, they formed a legal debating group they called the Federalist Society. And in a hint of things to come, their first faculty advisor at the Chicago chapter was professor Antonin Scalia, soon to be the most influential conservative on the Supreme Court.
This week, in a moment of triumph, the Federalist Society — now with 35,000 members and chapters at every major law school in the nation — is holding its annual meeting at the Mayflower Hotel, a few blocks from the White House. Not only are conservative judges no longer a minority, two of the society's favorites, new Chief Justice John G. Roberts Jr. and Supreme Court nominee Samuel A. Alito Jr., are poised to add their "strict constructionist" voices to the high court.
These days, the one-time college debating society is seen by both friends and critics as the legal branch of the "vast right-wing conspiracy." It brings together prominent conservative judges, Bush administration lawyers, Cabinet officers, law professors and roomfuls of young lawyers who hope to assume their places in the future.
They share a common concern: that courts and judges have taken on too much power in America's democracy and that this "judicial activism" should be replaced by what Roberts described as a modest and limited role for the judiciary.
In fact, in large measure, they have already reshaped the courts.
Conservative judges, many of them products of the Federalist Society network, have come to dominate the federal bench. On Thursday, President Bush hosted the group's leaders for an early morning meeting at the White House. As another sign of the society's close ties to the Bush White House, the speaker for Thursday's dinner was Bush's beleaguered political strategist Karl Rove.
Many liberal advocates admit they look with envy at what the Federalist Society has achieved.
"They have been unbelievably successful in a short time," said Nadine Strossen, president of the American Civil Liberties Union. "They have taken over the courts and the government. If you go to their meetings, you see the attorney general, senators, the solicitor general. I wish we had the same kind of presence."
Though the society has sometimes been portrayed as secretive, its debates are not only open but are usually balanced with liberal voices. Strossen, a New York Law School professor, regularly participates in Federalist Society meetings on campuses.
"Radicals in Robes," the recent book by University of Chicago Law School professor Cass R. Sunstein, attacks what he sees as a new wave of conservative activism in the federal judiciary. Some conservative judges would like to strengthen property rights and use the courts to roll back federal laws on the environment, civil rights and workers' protections, Sunstein argues.
He was invited to this year's meeting to debate his book and its thesis. "I really like them," he said of the Federalist Society. "They talk about ideas in a serious way. And they are genuinely respectful of competing views."
In a bow to the society's success, several liberal professors founded the American Constitution Society four years ago as a counter to the Federalist Society. It has organized chapters at 138 law schools and holds an annual meeting that has drawn speakers such as Supreme Court Justices Stephen G. Breyer and Ruth Bader Ginsburg and Sen. Hillary Rodham Clinton (D-N.Y.).
But Strossen concedes the liberal group has not yet achieved the same presence at law schools. "It still has a way to go," she said.
The Federalist Society has managed to influence the law without going to court. Unlike the ACLU, it does not file lawsuits and legal briefs. Nor does it takes stands on legislation in Congress. It does not even officially endorse and lobby for its own members, such as Alito, when they are nominated to the Supreme Court.
"When Harriet Miers was nominated, we had vocal members on both sides of that debate," Northwestern University law professor Steven G. Calabresi, one of the four original founders of the group, said of Bush's failed choice for the Supreme Court. He noted that former Judge Robert H. Bork, a hero to many conservatives, said the selection of Miers was a "disaster."
True to their roots, Federalist Society members seem most enthralled by debates over legal philosophy. This year's conference is focused on the theme of "originalism," the theory that the Constitution should be interpreted strictly based on its words and 18th century history, not on how concepts such as liberty and equality are seen today.
As the Federalists know — and few others would recall — then-Atty. Gen. Edwin Meese III gave a speech in 1985 calling on the Supreme Court to adopt the "jurisprudence of original intention." He faulted the high court that year for decisions that prohibited silent prayer in public schools, restricted the death penalty and limited the questioning of suspects by police.
"Far too many of the court opinions were, on the whole, more policy choices than articulations of constitutional principle," he said.
Meese argued that the only true sources of a justice's authority are the plain words of the Constitution as they were originally understood.
A few months later, Justice William J. Brennan, the court's leading liberal voice, fired back in a speech, saying Meese's view represented "little more than arrogance cloaked as humility." He said justices could not truly discern precisely what the men of 1787 meant when they wrote clauses that, for example, prohibited "cruel and unusual punishments" or "unreasonable searches and seizures."
Brennan said the Supreme Court should not be held "captive to the anachronistic views of long-gone generations." Rather, it should interpret the Constitution as setting out a "vision of human dignity [that] continues to evolve," he said.
This week, the Federalist Society reprinted both speeches as part of its program and used them as a backdrop for debates on topics such as "originalism and unenumerated rights" and "originalism and precedent." Though they may be abstract, these topics describe the essence of the Senate's debate over Roberts' nomination and the upcoming debate over Alito. As conservatives, will they vote to overturn Roe vs. Wade because the 1973 ruling that legalized abortion was not based on the original intent of the Constitution, or will they uphold it because of its 32-year-old precedent?
Conservatives ruefully acknowledge that they have not won many converts to "originalism" on the Supreme Court. Two justices, Scalia and Clarence Thomas, describe themselves as originalists. They have rejected, for example, claims involving gay rights or challenges to the death penalty for mentally retarded defendants by saying such ideas would have violated the original understanding of the Constitution. By contrast, a majority of justices said the death penalty for retarded defendants was cruel and unusual punishment by today's standards.
Similarly, state laws that blatantly discriminate against gays, the majority said, violate "equal protection" as it is understood today.
Sunstein, who clerked for the late Justice Thurgood Marshall, agreed that the conservative legal movement has won some battles, but not the war over how to interpret the Constitution."They have won the battle against 'liberal activism,' " he said. "But they have not won the debate over 'originalism.' The American public does not believe the Constitution should mean what it meant at the time it was ratified."
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