I am a veteran of Federalist Society conferences, but am largely a novice at ACS events. This is my second event. I attended the ACS Constitution in 2020 Conference in New Haven last fall. I have a few thoughts on the differences between the ACS and the Federalist Society.
The most striking difference between the two groups is the tone of the leadership. And that tone largely starts from the top. ACS President Caroline Frederickson brazenly refers to the Federalist Society’s philosophy as a “noxious brew.” She compared originalism to a “choking weed” that needs to be rooted out. She said the conservative message has dominated the legal landscape and blocked out the sun. She claimed that Federalist Society has disseminated their views through the “right wing media” which they created. She discounts all aspects of the Federalist Society, and cannot find any benefit in the views of the group.
In contrast, at every Federalist Society event I have ever been to, the tone is so, so different. All liberals and progressives were treated fairly. Leaders of the Federalist Society, like Eugene Meyer, Leonard Leo, and others, always use a friendly and cordial tone when talking about our opponents. In fact, when the Federalist Society invited Mark Levin, a polemicist to the national convention who spent 30 minutes attacking liberals, many attendees including myself were put off.
I just don’t feel the ACS leadership has a similar philosophy. Now, many of the ACS Professors I have met take a much more cordial and friendly tone to the opponents. The exemplar rapport between Jack Balkin and Randy Barnett, for example, is respectful and collegial. I have had the good fortune to meet so many professors who disagree with me, but respect my views. And I have the same philosophy towards them. But for a group that prides itself so heavily on tolerance for diversity–an admirable goal–they seem to eschew anyone who actually disagrees with them.
I personally find several views of the ACS quite appealing, although I do not agree with the majority of their views. While the ACS claims to have a big tent, a Federalist Society member who perhaps agrees with some ACS views, but not all, is kept outside the tent.
The Federalist Society has quite a big tent. Many members of the Federalist Society have ACS-type views with respect to the detainee cases and the war on terror. Many members of the Federalist Society, including myself, agree with the ACS that it is positive to restore the Privileges or Immunities Clause. Richard Epstein is in favor of removing liability caps for BP. Jonathan Adler is in favor of a carbon tax. I could go on and on.
I do not feel that the leadership of the ACS feels the same way about members of the Federalist Society. Perhaps a tone that recognizes areas of agreement, rather than a blanket denunciation of all things Federalist Society, would work better. A shrill, acerbic tone builds divisiveness.
Update: I was reminded by a friend of some of Ted Olson’s sharp rhetoric. I remember he gave a Supreme Court roundup in 2008 after Boumedienne, and he was totally unhinged. His rage, though, was directed mainly at Justice Kennedy and the Supreme Court, and the new ideas, not the advocates who represented the detainees. While I’m sure Olson was emphatic about Bush v. Gore, and is adamant he was correct, he still was able to partner up with David Boises in the Prop 8 trial. The recent Liz Cheney debacle, and the criticism she received from the right, illustrates that even conservatives can separate the attorney with the cause.
My point was simply that the rage in the Federalist Society is generally directed at the idea, not the people who espouse the ideas. I suppose the ACS could argue that it is impossible to separate the Federalist Society from originalism. Attacking originalism and attacking the Federalist Society are the same activity, the argument would go.
But this doesn’t hold water. Originalism is but one idea in the Federalist Society tent. To varying degrees, different Federalist Society members adhere to varying degrees of originalism. In addition, members of the Federalist Society are diverse, heterogenous beings, with different thoughts. A FedSoc member may agree with the ACS on several issues, but perhaps not on originalism. Lumping the Federalist Society together into a homogenous “noxious brew” is mistaken.