The FRONTLINE Interviews

Michael Avery

Co-Author, The Federalist Society: How Conservatives Took the Law Back from Liberals

Michael Avery is a professor of law at Suffolk University and is co-author of The Federalist Society: How Conservatives Took the Law Back from Liberals.

This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on January 24, 2019. It has been edited for clarity and length.

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Supreme Revenge

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The Origins of the Federalist Society

Let's start with the earliest days of what gets a group of conservative law students in Chicago and New Haven, [Conn.], to think about forming an affinity group.

Well, the founders of the Federalist Society were law students at Yale and Chicago and Harvard and Stanford, and they felt that the academy, the educational institutions and their professors were too liberal, and that the whole atmosphere in which they were studying was too liberal, and they wanted to do something about that.So they held a conference at Yale in 1982, in the spring, and it was very successful.They immediately began to proselytize and organize on other campuses, and they began to grow very quickly.

What made it successful, in their eyes?

You know, in their eyes I don't know.From my perspective, they came along at just the right time.There was, in general, a conservative renaissance that had really led to Ronald Reagan's election as president in 1980 that was fueled by people like Bill Buckley [Jr.] and, you know, the [<i>National</i>] <i>Review</i> and many other things that were going on.There was building resentment over liberal decisions of the Supreme Court during the [Earl] Warren court over Brown [v.] Board of Education, over Roe v. Wade.There was a lot for them to build on, and they came at just at a time when they had an opportunity to be successful.

And as it turns out, [Antonin] Scalia is the adviser in Chicago; [Robert] Bork is the adviser at Yale.Who are Scalia and Bork?What do they represent to these students?

Scalia and Bork were conservative law professors, along with Ralph Winter at Yale, and they gave the students an opportunity to feel like somebody noticed them, somebody appreciated their ideas, somebody was willing to mentor them.And this, of course, was richly rewarded soon thereafter when Scalia and Bork and Ralph Winter all were appointed to courts of appeals: Winter to the Second Circuit, Bork and Scalia to the District of Columbia Circuit by Reagan.

So the original idea, a bunch of students who feel out of it compared to the other students, gather around.Is there a consistent ideology?Is there a plan?

I think the original idea was to talk and to find other people to talk with and to spread their ideas and to debate their ideas.I think how successful they were may have come as a surprise to them initially, but it was immediately recognized outside their circle.

One of the key moments here—I may be jumping ahead—but one of the key moments here is after they graduated from law school and Ed Meese, who had been counselor to Ronald Reagan and then attorney general, immediately recognized the potential that these young people posed, and they were all offered jobs, either with judges on the Supreme Court or elsewhere, or in the Department of Justice or the White House.And Meese—I mean, the jobs they were offered were not flunky-type jobs.They got jobs in the Office of Legal Policy where they began to write memos and began to hold meetings in Washington and to attract other lawyers.Ed Meese is a key person in the development of the conservative legal movement in general, and the Federalist Society in particular, because he gave them access to the Reagan administration.

It becomes more than just a campus student union-kind of activity, and it's almost like a job fair/headhunter organization, where you can actually get work from your membership.

Very quickly, I have an acronym that I use when I think about the Federalist Society.What's the main idea, M-A-I-N, right?Money, access, ideas and network, and they were very successful on all those fronts.As students, they got money from [Richard Mellon] Scaife; they got money from Olin [John M. Olin Foundation]; they got money from Bradley to fund their conferences.When they actually formed the Federalist Society, all those people gave them a lot of money; Olin in particular gave them a lot of money.Meese gave them access to the Reagan administration.All along, they'd been promoting their ideas, and as they grew, they developed a network which today is probably the most powerful legal network in the country.

The Failed Bork Nomination and the Growth of the Federalist Society

So when Bork crashes and burns,…you're watching Ted Kennedy (D-Mass.) take down a conservative, threatening-to-the-Democrats law professor.From the perspective of the Federalist Society members and his student acolytes, what is happening?

They had been—the Federalist Society people had been very close to Bork, people like Clint Bolick, who was one of their members, particularly active in the area of criticizing affirmative action.Bolick is now on the Arizona Supreme Court.Bolick was with Bork all the way.Lee Liberman Otis was with Bork all the way.So they had been intimately involved in promoting Bork.And when Bork got taken down, you know, their attitude, I think, became "Never again."And this was something that they promised never to forget, never to forgive.

Energizing the group across the board, I suppose?

Absolutely energizing for them.And this has happened over and over to them, where they have taken something that looked like a defeat and then turned it into, you know, a marching cry, to go forward with their conservative, pro-business, pro-private property, anti-abortion, anti-homosexuality agenda.

So in that five-year span between when Bork goes down and [Clarence] Thomas is about to get nominated to be put on the court after Thurgood Marshall resigns, how much have they grown?Not actually numbers, but what is the scale and scope of their growth?

Oh, the scale and scope was fantastic.Very quickly they were on campuses all over the country.They had lawyers' chapters all over the country.The lawyers' chapter in D.C. was particularly active.And they were in the White House.C. Boyden Gray, who later became a member of their Board of Visitors, and Lee Liberman Otis, who was one of the founders when she was at Chicago Law School, are in the White House, and they're responsible for judicial selection during George H. W. Bush's presidency.They're vetting all the nominees for federal judgeships.

…So when Thomas is named, he's a member of the Federalist Society.

Yes.

And they officially can't do anything other than support the idea of Thomas, I suppose.

At that time, the Federalist Society didn't have any official role to play.It still doesn't have any official role to play.But as I say, they've got two people in the White House who were responsible for vetting all nominees: C. Boyden Gray and Lee Liberman.And then Clint Bolick is very close to Thomas.When Thomas was at the Equal Employment Opportunity Commission, Clint Bolick was working for him at the Equal Employment Opportunity Commission.Bolick during those years is a very important and active member of the Federalist Society, particularly in terms of bringing litigation by so-called conservative public interest groups.And Bolick is very close to Thomas.I think either Thomas is the godfather to Bolick's kid, or Bolick is the godfather to Thomas' kid; I can't remember which, but they're very, very close.And they shepherd Thomas' nomination through.Thomas would never have made it if it weren't for the Federalist Society.

So now you've got Bork going down, and that energizes and certainly gets everybody rolling.And then you've got Thomas, who gets on with the blessing and the assistance of certainly members from Lee Liberman Otis to Bolick.Now there is a period between Thomas and when Obama comes in…This is really the big growth period.

Well, in terms of the number of members, in terms of their income, I don't have the data without looking it up, but, you know, they get more and more money.They get into more and more law schools until ultimately they have a chapter in every law school in the country.They have a lawyers' chapter in all the major cities.Leonard Leo, who's the executive vice president of the Federalist Society, starts something called the Judicial Crisis Network to oppose Obama's nominees.They don't give up on what they're doing just because a Democrat is in the White House.They continue to have their debates.They continue to publish their articles.They continue to grow, you might say, intellectually and organizationally.

Mitch McConnell and the Courts

…McConnell (R-Ky.) was …one of those senators who stood up at the end of Bork, young Mitch McConnell, dark-haired Mitch McConnell, waving his finger at the Democrats and saying, "The day will come when you will rue the day that you've done this, that you've introduced politics in such a straightforward nasty way to the process."

Well, he's had his chance now.McConnell has worked very closely with Don McGahn, who was Trump's White House counsel up until last October, and with Leonard Leo.There's a story that was reported in the Times that Don McGahn was very close to Trump during the primaries; he was one of his advisers.Trump got the news that Scalia had died.

That night, Trump was debating the other Republican hopefuls, and he calls McGahn, and he says, "What should I say about Scalia dying?"And McGahn says to him, "Well, here are some names you can throw out as possible Supreme Court nominees."And he gives Trump some names.And that night McGahn watches the debate, and Trump repeats these names and says, you know, "If I'm president, we might have someone like this or someone like that."McGahn says that's where he got the idea of developing a list.

So later he sits down with Leonard Leo and they develop a list, and they give this list to Trump, and they give it to McConnell so that after the election, McConnell and McGahn meet and develop a strategy for how they're going to handle judicial nominees.And they work it out that, you know, they've got the Supreme Court in mind, of course, but they also have the courts of appeals in mind.And they decide they're going to go for the most important courts of appeals first, and they're going to push these nominees through the Senate, and that's what they do.

In McConnell's case, we think of it was what we call "supreme revenge."

Yes.Yes.So at this point, Donald Trump has successfully nominated 30 courts of appeals judges—25 of them are in the Federalist Society; two Supreme Court justices, both in the Federalist Society.

And they join [John] Roberts and Thomas, who were also—

And [Samuel] Alito.

And Alito.

So now there are five members of the Supreme Court who are members of the Federalist Society.It's astonishing.Just as a thought experiment, try to imagine what our jurisprudence would be like if we had five members of the ACLU on the Supreme Court.You know, that's never happened.Probably not too likely to happen in the current climate.But five members of the same group with, you know, some differences in their ideological approach, but basic agreement on core issues like the importance of private property, big government is bad, small government is good, federal government is bad, state government is good.It's an extraordinary situation.

Unprecedented?

So you know, is the current situation unprecedented?Not exactly.If you look at the early years of FDR's administration, the Supreme Court was striking down state legislation that was progressive under the substantive due-process rationale.It was striking down federal legislation that was progressive because it had a narrow reading of the Commerce Clause in the Constitution.Roosevelt couldn't get anything done.He came up with the idea of increasing the size of the Supreme Court so he could pack it with liberals.Turns out he didn't have to do that because some of the justices began to change their tune.

But that kind of ideological solidarity on what we call the Lochner era, because of the Lochner [v. New York] case, the Supreme Court was, you know, in a vise grip by conservative thinking.And it's a vise grip of conservative thinking now, some of whose members want to go back to the kind of society we had before the Supreme Court changed when Roosevelt was president.

The Federalist Society and the Supreme Court

…As the Federalist Society is growing in the post-Reagan years, the Democrats don't seem to be able to turn it into an issue, don't seem to be able to build a force that will fight so strong.Why?

OK, that's something I've given a fair amount of thought.Let's go back to the four things I said were important about the Federalist Society: money, access, ideas and a network.The liberals don't have the same kind of money.Liberal philanthropists don't give money the way conservative philanthropists give money.Conservative philanthropists give unrestricted money to the Federalist Society and these other shell corporations that are involved in judicial selection.Liberal philanthropists give money for projects…That's not what the Koch brothers do.They give the Federalist Society $500,000 and say, "Go about your business."So the conservative philanthropists have been successful in institution building because they give unrestricted money and because they let people go—you know, they give them the ball and let them run with it, right?Liberal philanthropists don't do that.

In terms of access, the Republican presidents, from Reagan, both Bushes and Trump, have been remarkably open to the Federalist Society and their allies in terms of bringing them into their administration.Remember, Alito, Thomas and Roberts all had jobs in the Reagan administration.They were all in the Reagan administration as part of the executive branch.Now they're all on the Supreme Court.

When George W. Bush was president, the Department of Justice was using Federalist Society membership as a kind of litmus test in hiring new lawyers to such an extent that the inspector general's office finally investigated it and blew the whistle on what they were doing.

Obama didn't operate in the same way.Clinton didn't operate in the same way.So the kind of people who, from the liberal side, might be like Federalist Society people never had that kind of access.

In terms of ideas, the Federalist Society people are prolific with their writing.There are a lot more liberal law professors than there are conservative law professors, but the conservative law professors and lawyers have made coming up with ideas and debating ideas about law and policy their primary mission.And they've been very successful in selling these ideas to politicians and, to some extent, to the larger society.

And then finally, in terms of a network, the liberals don't have anything like the Federalist Society network.The Federalist Society last year—not last year.In 2017—that's the latest annual report they've published—they had over 1,000 events at law schools.There were over 68,000 attendees at their law school events, right?They have 90 lawyers' chapters.There were over 400 events at these lawyers' chapters.They have 60,000 or 70,000 people involved with them.

So here are these young law students.They go to a Federalist Society meeting.They have a chance to meet Supreme Court justices because the Supreme Court justices go out to these meetings.Scalia and Thomas were very active, and Thomas still is, in going to events at law schools.So you're a 22-, 23-year-old kid in law school and you're shaking hands with a Supreme Court justice, and then they bring you down to Washington in the summer and you get a chance to go to seminars, and you get a chance to hear these people talk, and you get a chance to meet them.And after you graduate, they help you get jobs.Either you're clerking with a federal judge or you're working with a law firm that's very well connected, right?And then, if you keep rising up through the ranks, you'll get appointed as a federal district judge, and then maybe a court of appeals judge, and then maybe the Supreme Court.

So here's this multi-lane highway from the law schools to the Supreme Court, staffed with thousands of people who have the same goal in mind, which is to change the law by changing the judges and changing the way people think about public policy issues.And they have huge amounts of money…They have $30 million in assets.The American Constitutional Society, which is the liberals' answer, doesn't have—it has a fraction of that.

…And the end of the rainbow is a judicial nomination or confirmation, and you're on a court for 30 years, 40 years.

Yeah!Look at Brett Kavanaugh.Brett Kavanaugh was picking judges for George W. Bush; that was his job in the Bush administration, helping Bush select federal judges.Then they put Kavanaugh himself on the District of Columbia Circuit Court of Appeals.And then when Trump comes along, they put him on the Supreme Court.You know, it's a track.And all these people—Roberts, Alito, Thomas—

—[Neil] Gorsuch and Kavanaugh.

Gorsuch and Kavanaugh were on this track.You know, there are these feeder judges on the courts of appeals who have law clerks, and then they call up or write, talk to the Supreme Court justices and send their law clerks up so they become clerks on the Supreme Court.So a lot of the clerks of Supreme Court justices were originally clerks at the court of appeals level for some Federalist Society judge who then bumps them up to the Supreme Court to be clerks.And then of course, these clerks are highly sought after by the law firms, or for other jobs, you know, in the political administration, and then they start working their way up, not as clerks but as judges.

Conservatives and the Courts

So if you're Mitch McConnell and you are running a party that is shrinking , …you don't need to have big numbers; you don't need to appeal to women and Latinos and others, wherever the base was going to come from.You can control, I guess, through the courts, a number of factors in the political process that you couldn't do if you didn't have the courts.

As one author put it, Leonard Leo realized that the conservatives had lost the culture wars, so they tried to win the judicial wars.And they have.

Explain that.What does that mean?

Well, take homosexuality, for example.Society's attitudes toward homosexuality have changed dramatically over the last 20 or 30 years.If you talk to young people today, they don't even understand what the controversy is about.You know, they have gay friends; some of their gay friends are married. They just don't get it.What's the big deal, right?In that sense, the conservatives lost the culture war.

On the other hand, they fought tooth and nail, and they're still fighting tooth and nail—Trump is currently fighting this issue about transgender people in the military—fought tooth and nail to try to keep homosexuals from marrying each other, from being in the military, you know, from being able to teach and do other kinds of jobs.If you listen to Scalia on the subject of homosexuality, he was rabid about it.

The Power of the Federalist Society

…When you think about the power of the Society, what is the thing you tell people to be most concerned about about the Federalist Society and its growth?

It's a good question.You know, for a long time, the Federalist Society was operating sort of under the radar.People didn't really know who they were.The media didn't really cover them that much.When I started doing the research for my book, most of the material that I read was online reporting rather than, you know, magazines or newspapers, things of that sort.So one of the things I was concerned about then was, here's this very powerful group of people with access, you know, to the White House, with a lot of money and very conservative ideas, and nobody knows what they're doing.Now people are sort of getting the idea, you know.There's been a lot more publicity about the Federalist Society.

By the way, I never thought the Federalist Society was doing anything underhanded or illegal.Everything they did was aboveboard.You can go to their website and find out exactly what they were doing.

…What do I think is the biggest problem now?They've been very—the principal issue that the Federalist Society members are concerned about is private property and the power and opportunity that private property presents for people who have it.And the principal obstacle to what they want to do is government regulation.Government regulation is their principal evil that they're trying to overcome, some from a libertarian point of view, some from a business-conservative point of view, some from a greed point of view.But the promotion of private property and the power and opportunity it gives people is their principal goal, and government regulation is their principal enemy.

If you are in favor of a more egalitarian society, if you'd like to see narrowing the gap between the rich and the poor, if you'd like to see narrowing the gap between people who have a lot of wealth and people who have none, between the CEO and the person on the factory floor, if that's what you'd like to see, unfettered opportunity for private property is not the way to go.

And because they're so powerful and so on it, from the legislative level to the court level, they're going to control that agenda.

They have—you know, it's interesting.Their agenda has always been to move things from big federal government to smaller state government.But now they're getting—the Federalist Society is more and more interested in what's happening at the state level.I never really thought the issue was federal government versus state government.To me, the conservative platform has always been about government regulation at any level.So now we're starting to see the Federalist Society more interested in judicial appointments at the state level, more interested in what states’ attorneys general are doing.The new Florida governor [Ron DeSantis], immediately after he came into office, had three new appointments to the Florida Supreme Court to make because previous justices had retired.All three of the people he appointed are members of the Federalist Society.Florida Supreme Court is now basically conservative-controlled, Federalist Society-controlled.We're going to see more and more of that across the United States.

Federalist Society got very concerned about what state attorneys general were doing, because state attorneys general were filing lawsuits, you know, maybe over environmental issues, for example.So the Federalist Society started to ask the question, is this really an appropriate role for these state attorneys general to be playing?They started a state attorney generals project.You can go to the Federalist Society website and go to the state attorney generals page and see how they track what state attorney generals are doing.

The conservatives' enemy is regulation, whether it's federal or state, and their friend is unfettered private property.

Legislating Through the Courts

The Federalist Society believes that to change the law, you have to change the judges, a very, very important issue.It's something that McConnell also—

Well, of course the Federalist Society started in 1982 during Ronald Reagan's presidency, you know, sort of right after the end of the Warren court era and just before the Rehnquist court era.And during that period of time, there was a lot of resentment of what the Supreme Court had done—Brown [v.] Board of Education, for example, which created maybe the most seismic change in our society since the New Deal.They didn't like the way that was done.They felt that the judges were too liberal—too liberal with regard to the exclusionary rule in criminal cases, too liberal with regard to desegregation efforts, too liberal with regard to women's rights, abortion and so on.

And they said, well, if we want to change that, I guess there are two ways you could go about changing that.One would be a massive campaign to change the ideas of everybody in America about what kind of society they wanted.And the other idea, more narrow, let's change the judges, because the judges seem to be very important in establishing social and public policy.If we change the judges, we can change the law.That was the original idea during the Reagan administration.It was Ed Meese's idea.It was William Bradford Reynolds' idea.It was the idea of all those people who worked for Reagan, and it was the idea of these young Federalist Society people.Change the judges; we'll change the law.They changed the judges, and in fact the law in some very significant ways has changed.

And McConnell?

McConnell.Mitch McConnell was, you know, waiting for this opportunity.And people like Don McGahn, President Trump's White House counsel, and Leonard Leo worked very closely with McConnell to develop a strategy to change the judges.McConnell had held up Merrick Garland's nomination.Completely unprincipled.Not even bringing that nomination to a vote in the Senate.…The Republicans had slowed down Obama's ability to appoint judges.So when Trump came in, you know, here was an open field in front of them, and they ran with it very, very successfully.

Changing the Rules of the Nomination Process

In some ways, you only need the Congress and the Senate really to ratify the changes you want to do in the judiciary.

Well, and a couple of other things had happened.Remember that when Obama was President and the Democrats had control of the Senate, they changed the rules with regard to judicial nominees, so that you didn't need to overcome–you didn't need a closure vote to overcome, what do you call it–when someone talks and talks–

Filibusters.

Yeah.When Obama was president, the Democrats changed the rules regarding filibusters so that when Trump came in, all he needed was 51 votes to get somebody on the Supreme Court; 51 votes to get somebody on the courts, court of appeals.So Trump had really an opportunity that few presidents had had before, where he had control of the Senate and he only needed a majority vote to get his people on the bench.

So a mistake by Harry Reid (D-Nev.) and very cagey work by Mitch McConnell.

I think it was a mistake by Harry Reid, and then McConnell exploited it.And we're seeing the results of that.Trump has appointed 30 courts of appeals judges; 25 are member of the Federalist Society.Two Supreme Court justices, both members of the Federalist Society.And then you've got all the district court judges that he's going to appoint.

People focus on the Supreme Court appointments, but the courts of appeals judges are also very, very important.The Supreme Court only hears 80 cases a year.The courts of appeals hear 6,000, so a lot of public policy is made at the court of appeals level and never bubbles up to the Supreme Court.

Brett Kavanaugh and the Federalist Society

Just give us a little bit about Kavanaugh's relationship, history with the Federalist Society.

Kavanaugh joined the Federalist Society, I think at some point, maybe in law school or shortly after law school.Kavanaugh had been a member of the Federalist Society during his entire legal career with one brief exception, when George W. Bush put him in charge of vetting judges in his administration.Kavanaugh briefly took a leave from the Federalist Society because he wasn't sure if he could be a member of the Federalist Society and doing this in the Bush administration.Someone told him he could, so he rejoined the Federalist Society.So he'd always been a member of the Federalist Society.

He went from the Bush administration, picking judges for George W. Bush, to being one of George W. Bush's on the court of appeals for the District of Columbia.And then when Trump came along, he was one of a pool of people who was there ready to [be] put on the Supreme Court.

It's important to remember that Kavanaugh was only one of the fish swimming in that pool.I mean, there were maybe 30 or 40 or 50 people just like Kavanaugh who could have been picked to put on the Supreme Court, because the network is so strong and the pool is that big.

…Can I ask one last thing?The Federalist Society has attained a level of influence they would never have guessed they would back in the '80s.Or maybe they did.And now with Trump, they're really changing the courts in the country for the next few decades.

Here's why the Federalist Society has changed things for the next few decades.It's not only the money.It's not only Leonard Leo.It's not only McConnell.It's not only these Republican presidents.But it's this vast network of young people and older people, now three generations of people, who have come through the legal educational system and the legal system, committed to these conservative ideas and committed to proselytizing them.

And they won.

Yes, they win.

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