Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. As loyal listeners know this fall on
Speaker 1: Deep Background. We ran a mini series called Deep Bench
Speaker 1: about how a club for lawyers called the Federalist Society
Speaker 1: became the most powerful legal organization in the country. My
Speaker 1: producers and I have turned this series into an audio
Speaker 1: book called Takeover, How a Conservative student club captured the
Speaker 1: Supreme Court. You can get it on Pushkin's website, Pushkin
Speaker 1: dot FM, or on Audible or wherever you get your audiobooks.
Speaker 1: The Federalist Society was started thirty five years ago, roughly
Speaker 1: after a successful surprising conference of conservative law students at
Speaker 1: Yale University. I tell you all about it in the audiobook.
Speaker 1: To celebrate the audio books released today, I'm speaking to
Speaker 1: Eugene Meyer, the President and CEO of the Federalist Society.
Speaker 1: Gene has been deeply involved the Federalist Society literally since
Speaker 1: it came into existence, as you will here in our conversation,
Speaker 1: and he is uniquely well placed to talk about the
Speaker 1: trajectory of the institution in the past and into the future.
Speaker 1: Gene thank you so much for joining me. I'm really
Speaker 1: grateful to you. I want to start by asking you
Speaker 1: about your own experience with the Federalist Society. I know
Speaker 1: you've been working with the organization in one capacity or another,
Speaker 1: all the way up to president and CEO for thirty
Speaker 1: years or so. How did you get started with the Federalists? Well,
Speaker 1: it's really thirty five years, and it's you know, these
Speaker 1: young law students started this thing out a couple of
Speaker 1: years old. During day. Asked me, gee, as we're leaving school,
Speaker 1: we want to have somebody running this full time, just
Speaker 1: out of college, you know, because we're going to be involved,
Speaker 1: but we've got our careers were starting. Do you have
Speaker 1: any ideas? And I said, I think you're making mistake.
Speaker 1: I think you want someone just a little bit more experienced.
Speaker 1: And they said, okay, that makes sense. Do you have
Speaker 1: any ideas? I suggested someone to them, They interviewed him,
Speaker 1: they made him an offer, and they came back to
Speaker 1: me and said, well, it was a good idea, and
Speaker 1: we made the guy an offer, but he ended up
Speaker 1: turning us down for something else. Do you have any
Speaker 1: other ideas? At which point I became and only some
Speaker 1: of your listeners were kept this. But at this point
Speaker 1: I became Dick Cheney. That's exactly where I was going.
Speaker 1: And you know, that's where I started. I was essentially
Speaker 1: the CEO from the beginning, because this is one person office.
Speaker 1: But I didn't know. I wasn't a lawyer. I didn't
Speaker 1: know a lot about law. I didn't know a political philosophy.
Speaker 1: I was very interested in things of that sort. And
Speaker 1: everything else kind of get picked up along the way.
Speaker 1: So you didn't you weren't apty so called conservative lawyers
Speaker 1: Woodstock the first Federalist Society convention in New Haven. How
Speaker 1: did you happen to know these folks? Did you know
Speaker 1: them from conservative politics or from political philosophy? Couple them
Speaker 1: from college? I see? And where did you go to
Speaker 1: college with them? To Yale? And actually the very funny
Speaker 1: things I was at the first symposium. Ah, there you are,
Speaker 1: frankly more as a warm body friends with them. They needed,
Speaker 1: they wanted attendance. I went, but I went out of
Speaker 1: you know, I mean, I wasn't uninterested, but it wasn't
Speaker 1: something I would have gone doing the abstract And what
Speaker 1: did you study it? Yeah? Did you study political philosophy?
Speaker 1: I had to some political philosophy, also some history. Tell me,
Speaker 1: with that arc of history and mind really having been
Speaker 1: there from the very very beginning, what does the Federalist
Speaker 1: society mean to you today? To take a brief detour
Speaker 1: to say, I definitely enjoyed very much listening to your book,
Speaker 1: and I do have a couple thoughts about it, but
Speaker 1: they'll come up in the course of our good I'm
Speaker 1: looking forward to hearing them very much. So I think
Speaker 1: there are a lot of different ways to answer to
Speaker 1: that question, but one thing I think I would say is,
Speaker 1: I think one key part of the Federal side from
Speaker 1: the beginning has been a genuine belief that debate and
Speaker 1: discussion lead ultimately to better public policy. That while they
Speaker 1: are all kinds of other ways people form their ideas,
Speaker 1: reason and serious discussion is really really helpful, both because
Speaker 1: you test your ideas against others and hopefully you learn
Speaker 1: from what they say and they learn from what you say.
Speaker 1: This is sort of old standard cliche, but I think
Speaker 1: nonetheless true, and I think to me the Federal Site
Speaker 1: is about getting very important views about the law heard
Speaker 1: and a time when, in general, except for our activities,
Speaker 1: many of those views have not been heard. I have
Speaker 1: to say what you're saying does resonate strongly for me
Speaker 1: that at every Federalist Society event that I've been to
Speaker 1: or participated in, and there have been scores and maybe
Speaker 1: more than a hundred over the course of my time
Speaker 1: as the lawyer in law professor, there is always an
Speaker 1: emphasis on multiple points of view being represented, and often
Speaker 1: I'm invited to speak, and you know that already is
Speaker 1: a sign of different points of view, because my view
Speaker 1: is often, not always, but often are really divergent from
Speaker 1: those of Federal Society members. So what you say resonates.
Speaker 1: At the same time, you can easily imagine starting an
Speaker 1: organization that was kind of a club for the discussion
Speaker 1: of legal ideas, that didn't begin with certain propositions about
Speaker 1: the right way to interpret the law, the right way
Speaker 1: to interpret the Constitution, and that didn't describe itself as
Speaker 1: an organization that isn't only for conservatives and libertarians, but
Speaker 1: that mentions conservatives and libertarians and itself description. So I
Speaker 1: think there might be some listeners who say, well, that's
Speaker 1: that's a great way to talk about one aspect of
Speaker 1: the Federal Society. But surely they would say it's slightly
Speaker 1: hiding the ball with respect to the conclusions that you
Speaker 1: and other Federal Society members hope people will reach when
Speaker 1: they have her different points of view. That is, you
Speaker 1: want people to hear different points of view and then
Speaker 1: adopt something within the family of views that are popular
Speaker 1: within the organization. Would that be fair? It's a reasonably fair.
Speaker 1: I mean, I like to think we're prepared to change
Speaker 1: our views. What's the line when I get new facts
Speaker 1: that country to my views, I change them. What do
Speaker 1: you do, sir? What's the classic wine? Good? And Well,
Speaker 1: we're gonna come to that. We're gonna come to changing
Speaker 1: views too. So that's great, Yeah, hopefully. But in general, Yeah,
Speaker 1: And one of the things I think would be true
Speaker 1: not only of us, but of almost any group is
Speaker 1: that the world doesn't operate completely in abstracts. One of
Speaker 1: the reasons you get motivated to have discussions is because
Speaker 1: you think your ideas are important and are good, and
Speaker 1: you do want to test them against others and in
Speaker 1: general persuade others. But at the same time, be aware
Speaker 1: you might be persuaded if you don't start out with
Speaker 1: some kind of ideas about what you think the law
Speaker 1: should be or whatever. You probably wouldn't be motivated to
Speaker 1: really start something like this, although perhaps he would. But
Speaker 1: I'd say empirically, there'd be tremendous opening for an organization
Speaker 1: that was committed to debate and discussion of ideas, that
Speaker 1: was genuinely agnostic completely about what it believed. And I
Speaker 1: don't know of any like that. Really, It's probably not
Speaker 1: a coincidence. I mean, even something like science, which is
Speaker 1: in theory just trying to find the truth. Most of
Speaker 1: the time people get involved in pursuing a scientific theory
Speaker 1: because they believe that theory is going to turn out
Speaker 1: to be correct. Sometimes they find is false and they
Speaker 1: correct themselves. Gene, every organization just about that organizes people
Speaker 1: for action, at least in part deals with the question
Speaker 1: of how much of your time are you spending trying
Speaker 1: to convert the unconverted and how much of your time
Speaker 1: are you spending trying to build group agreement and solidarity
Speaker 1: among people who are rough like minded. And I think
Speaker 1: the Federal Society does both of those things. How do
Speaker 1: you think about the balance between those two And the
Speaker 1: reason I ask you that is that many outside observers,
Speaker 1: myself included, think of the success of the Federal Society
Speaker 1: in transforming the Federal Judiciary as to a large extent,
Speaker 1: the product of the second, the group solidarity, rather than
Speaker 1: the first, where you go out and try to preach
Speaker 1: to the unconverted. Yeah, I mean, I suppose in any
Speaker 1: organization there's some of both. I guess what I would
Speaker 1: say on that a little bit is that I think
Speaker 1: it's more in some ways even more complicent in what
Speaker 1: you're saying. But what may possible a lot of the
Speaker 1: sort of more practical results you're talking about is some
Speaker 1: degree of success in the form of having the ideas
Speaker 1: become a key part of the discussion. You would not
Speaker 1: have a lot of people who are basically philosophy is
Speaker 1: basically originalist on the bench if there weren't people who
Speaker 1: had come to believe in that basic philosophy. That's certainly true.
Speaker 1: You need a number of people who hold that view.
Speaker 1: I mean, if you go to an American law school
Speaker 1: still to this day. I mean, one of the stated
Speaker 1: goals of the Federal Society from the beginning was to
Speaker 1: increase intellectual diversity within American law schools. I would say
Speaker 1: that's one of the only goals of the Federal society
Speaker 1: that's had only really moderate success. I mean, there are,
Speaker 1: of course professors who are originalists and textualists at American
Speaker 1: law schools more than there were thirty five years ago,
Speaker 1: but they're nothing like a majority. What you do have
Speaker 1: are a lot of really smart students graduating from those
Speaker 1: goals at the top of their classes, who then go
Speaker 1: on having been members of the Federal Society clerk for
Speaker 1: judges who are either loosely or less loosely affiliated with
Speaker 1: the Federalist Society, and end up clerking for the Supreme Court,
Speaker 1: and then a few years down the road end up
Speaker 1: as judges and now as justices themselves. And I mean,
Speaker 1: the extraordinary thing, at least from my generation over the
Speaker 1: four years of the Trump administration via the Federal Society
Speaker 1: is just how many of the really smart, really elite
Speaker 1: Federal Society conservatives in my generational cohort ended up on
Speaker 1: the Federal bench and on the Supreme Court. I mean,
Speaker 1: that is extraordinarily striking, and that's got to be a product.
Speaker 1: In part, you have to have them, but they also
Speaker 1: have to know each other and being solidarity with each other.
Speaker 1: I think one of the things is a lot of
Speaker 1: our events including our National Convention, but also including many
Speaker 1: many other events around the country help facilitate people getting
Speaker 1: to know each other. That is key in any endeavor.
Speaker 1: You know, if you have one really smart person working
Speaker 1: in isolation, they're very unlikely to be anywhere near at productors.
Speaker 1: They will be if you have four or five of
Speaker 1: them in sort of in a group, working together and
Speaker 1: feeding off of each other. I want to ask about
Speaker 1: the National Convention. One of the episodes in the podcast,
Speaker 1: which became a chapter in the book, focuses on the
Speaker 1: story of Randy Barnett, law professor at Georgetown, who came
Speaker 1: up with an idea for the unconstitutionality of the individual
Speaker 1: mandate provision of the Affordable Care Act in conversation with
Speaker 1: people in the hallway at the Mayflower Hotel at your
Speaker 1: big national Convention, and then worked with people affiliated with
Speaker 1: the organization to help make that idea broadly known, and
Speaker 1: then ultimately five justices of the Supreme Court did adopt
Speaker 1: that idea in the Court's opinion. How does the National
Speaker 1: Convention function in relation to the overall project of the
Speaker 1: Federal Society. What does it feel like to you to
Speaker 1: go to it every year? Well, it is a function
Speaker 1: of bringing together a lot of people to share ideas
Speaker 1: and to get to know each other. And then there's
Speaker 1: no question that conversations in the hallway are a key
Speaker 1: part of the convention. As one of the reasons why
Speaker 1: we're very sad about this last year we couldn't have
Speaker 1: it in person one. We still have the substance, but
Speaker 1: it's not the same. Yes, problem with zoom. There's no
Speaker 1: back channels on Zoom. Yeah, it's just the way it
Speaker 1: is for right now. I think it's an extremely important
Speaker 1: part of things. But I would also say that the
Speaker 1: vast majority of our activities are ones you do not
Speaker 1: read about, and the vast majority of our members have
Speaker 1: never been to a convention. Most of our activities do
Speaker 1: not take place in Washington, d C. There are two
Speaker 1: hundred chapters students and one hundred lawyers chapters and practice
Speaker 1: groups that all run all kinds of kids. We have
Speaker 1: over a thousand meetings a year in law schools, and
Speaker 1: an awful lot of what happens it's really important and
Speaker 1: really valuable happens there. And Washington being Washington, Convention being there,
Speaker 1: there's always some degree of political overaly that's much much
Speaker 1: less than in other places. When you think about the
Speaker 1: relationship between those gatherings, especially the law school gatherings, and
Speaker 1: then the moments when you have a conservative president and
Speaker 1: a Senate rijority of Republicans and raft of conservative judicial appointments,
Speaker 1: how do you think of the connection between those things.
Speaker 1: Because I'll tell you from the standpoint of students, both
Speaker 1: when I was a student and when I see my
Speaker 1: own students, they see a close connection. They think, if
Speaker 1: I go to these events, I'll meet the right people.
Speaker 1: I'll know who the right judges are to clerk for
Speaker 1: if I then do really well in law school. It's
Speaker 1: not enough just to go. You also have to be smart.
Speaker 1: Then I'll have a good shot by putting Federal Society
Speaker 1: on my resume of signaling to the judge where I
Speaker 1: am on the political spectrum, getting a clerkshire for those judges,
Speaker 1: and then entering the kind of core group of highly credentialed,
Speaker 1: highly smart, elite young lawyers, and then ending up as
Speaker 1: one of those judges someday. So I think that's how
Speaker 1: it looks to a great extent from the student's perspective.
Speaker 1: How does it look from the organization's perspective. I'm trying
Speaker 1: to think how to answer that, you know, reasonably accurately,
Speaker 1: because it is certainly something which happens in some cases. Look,
Speaker 1: I think the other the one component there in terms
Speaker 1: of federal site types that you didn't mention is a
Speaker 1: pretty deep interest in public policy and you know, a
Speaker 1: belief in a general set of ideas, which as you know,
Speaker 1: they're why difference within the federal society, but a belief
Speaker 1: in a general set of ideas that cause you to
Speaker 1: be motivated more in that way less in some other ways.
Speaker 1: I mean, the wisecrack we've encountered from time to time
Speaker 1: when we've talked about they're not being as many federal
Speaker 1: sidey types teaching law schools that should be, is well,
Speaker 1: you know, these conservatives just more interested in earning money.
Speaker 1: I just don't think impurely that's quite right. I mean,
Speaker 1: there's an interest in earning money as people are across
Speaker 1: the board, but I think there's a lot where that's
Speaker 1: not there. Yeah, they're also fewer. I mean, just to
Speaker 1: be very clear about it, When I have a brilliant
Speaker 1: young law student in a class and I don't know
Speaker 1: what the students politics are, and the student comes to
Speaker 1: me to get to know me, or to become a
Speaker 1: research system, or to discuss something in class. As I
Speaker 1: get to know the person over time, I always I
Speaker 1: never asked directly, but I always think, in the back
Speaker 1: of my mind, Gee, I wonder if this person's politics
Speaker 1: are roughly speaking, liberal, in which case they're in the
Speaker 1: majority and they could still get a great clerkship. But
Speaker 1: it's not going to be simple. There's a ton of competition,
Speaker 1: and if they're a very brilliant student and are pretty conservative,
Speaker 1: I actually rest easy because I know that this person
Speaker 1: is going to get a great clerkship. Just as a
Speaker 1: statistical matter, there are not as many at elite law
Speaker 1: schools students in total, and certainly as therefore as a
Speaker 1: percentage of the total number of the really top students.
Speaker 1: There are fewer conservatives, They are fewer Federal Society members.
Speaker 1: Then there are kind of mainstream liberals, and so you know,
Speaker 1: part of the reason that there are fewer law professors
Speaker 1: is not just what people choose to do, but just
Speaker 1: the raw numbers are smaller. There's probably some of that,
Speaker 1: and there's also been some change over time, because there
Speaker 1: was quite a period of time time where I think
Speaker 1: in the early days of the Federal Society, Federal side
Speaker 1: tape students had a tough time getting good clerkships, you know,
Speaker 1: for some of the same reasons you're saying they're doing
Speaker 1: very well right now. Right there were fewer conservative judges
Speaker 1: and now there are lots of conservative judges. Yeah, so yeah,
Speaker 1: that swings back and and there of course many many
Speaker 1: judges don't pay any attention to political philosophy and hiring
Speaker 1: in many others pace some it's a real range. Yeah,
Speaker 1: but yes, we'll be right back. Let's talk about differences
Speaker 1: of opinion, which you mentioned gene as among Federalists. And
Speaker 1: I know many people told us in the course of
Speaker 1: the research for the podcasts in the book that some
Speaker 1: of these disagreements where they are from the beginning. But
Speaker 1: broadly speaking, it seems to me that most members of
Speaker 1: the Federal Society or are close affiliates, share the commitments
Speaker 1: that Justice Scalia. The late Scalia had two three core
Speaker 1: ideas originalism in interpreting the constitution, textualism in interpreting statutes,
Speaker 1: and judicial restraint as a kind of overarching guideline for
Speaker 1: judges avoiding reaching out to strike down statutes when it
Speaker 1: can be avoided and trying to do as little as
Speaker 1: possible as judges unless the law or the constitution squarely
Speaker 1: mandates that they do otherwise. Do you think that those
Speaker 1: three principles remain the overall or overarching core of the
Speaker 1: judicial philosophy that is roughly associated with the federal society
Speaker 1: in the broadest sense. That's a reasonable statement. I would
Speaker 1: say the judicial restraint part is the dices of the three.
Speaker 1: There's been a split all along on that. Libertarians been
Speaker 1: much more dubious about it, and the term remains a
Speaker 1: dicey term. What is a judge supposed to do? If
Speaker 1: the judge thinks something's unconstitutional. The last ten things that
Speaker 1: have come before all he thinks are unconstitutional, it is
Speaker 1: supposed to say, after it's overturn five of them, the
Speaker 1: next five, I need to be more restrained, you know.
Speaker 1: I mean, that's sort of one of the questions that
Speaker 1: can come up for a judge. So I think that's
Speaker 1: less crystal clear, although it's definitely a factor that would
Speaker 1: be considered. I think the originalism is not universal. An
Speaker 1: element of it is in our statement of purpose, but
Speaker 1: it's certainly not universal and not universal amongst our members.
Speaker 1: But it is. It is widely believed and probably textuals
Speaker 1: in the same basic thing is true. But once again,
Speaker 1: there degrees of both. And there's also lots of battles
Speaker 1: within originalism, as you know, and as it becomes very
Speaker 1: clear in some of the court cases that come up.
Speaker 1: Look for example at Bostock. Well, let's talk about Bostock.
Speaker 1: That's a perfect example. That's the case decided by the
Speaker 1: Supreme Court in the summer of twenty twenty about the
Speaker 1: meaning of Title seven, the antidiscrimination provision of the Civil
Speaker 1: Rights Act that says there may be no workplace discrimination
Speaker 1: because of sex. And in that case, a six to
Speaker 1: three majority of the Court, in an opinion written by
Speaker 1: Justice Neil Gorsuch, a Trump appointee, and joined by Chief
Speaker 1: Justice John Roberts and then the other at the time
Speaker 1: four liberals on the Court, held that the words because
Speaker 1: of sex incorporate discrimination against gay and trans people. And
Speaker 1: on the other side, the three dissenters were very, very
Speaker 1: pointed in saying that they thought that this decision was
Speaker 1: a betrayal of Justice Scalia's principles of following the text
Speaker 1: of the statute. And for his part, Justice Corsuch in
Speaker 1: his opinion, said pretty clearly, I'm just following the text
Speaker 1: at the statute. I'm just reading the words. So that
Speaker 1: was an example of a deep disagreement among conservatives. What's
Speaker 1: your sense of how that? What are the reverberations of
Speaker 1: Bostock right now, not just in the Federal Society's circles,
Speaker 1: but more broadly and conservative legal thought. Well, I'm going
Speaker 1: to take it more broader than just Bostock. I think
Speaker 1: you're going to se that are coming up periodically, and
Speaker 1: I think you're going to see differences amongst originals periodically.
Speaker 1: I mean, the two strongest originals on the court, Thomas
Speaker 1: and Scalia, definitely different on occasion rare occasion. I mean
Speaker 1: I teach the handful of cases where they where they
Speaker 1: disagreed in writing. Well, yeah, they're interesting, but I'm just
Speaker 1: saying even those two different, and you're going to see
Speaker 1: that from time to time. But one of the things
Speaker 1: I'm actually going to jump here to what I was
Speaker 1: getting to in your clean Things in your book, which
Speaker 1: I did enjoy lots of, but the sort of theme
Speaker 1: you have about well, the federal sites done these various things,
Speaker 1: but right now it's heading into this period of a
Speaker 1: lot of tension and possibly breaking up to some degree.
Speaker 1: And there are two themes that seem to me to
Speaker 1: be being developed. One is the theme that the Federal
Speaker 1: Society has, and this is touched on a little bit
Speaker 1: in your thing that maybe it's gotten more interested in
Speaker 1: results than an idea is or something like that seemed
Speaker 1: to be a partial theme. Well, I don't think that
Speaker 1: that of the organization generally. I just think that that
Speaker 1: could be one of the lines that is posed in
Speaker 1: a situation like the Bostock case. So clearly, Justice Corsuch,
Speaker 1: I don't know what his private views are, but consistent
Speaker 1: with the rest of his jurisprudence, which is very conservative,
Speaker 1: this was a shocking outcome, and Justice Scrsuch didn't care
Speaker 1: about that. He wasn't being result It seems to me
Speaker 1: very problem. He's not being results oriented in holding in
Speaker 1: favor effectively of gay and trans people. That seems like
Speaker 1: I'm going to follow textism wherever it leads me. But
Speaker 1: then on the other hand, you have voices, and I
Speaker 1: think of Senator Josh Holly, who gave a very pointed
Speaker 1: speech on the floor of the Senate in response to
Speaker 1: the decision, saying and I'm paraphrasing him, but we have
Speaker 1: the exact quote in the book. He said, if this
Speaker 1: is where legal conservatism is going, legals conservatism is dead
Speaker 1: as we know it, because this is an outrageous outcome.
Speaker 1: Senator Holly speech was pointedly about results. Yeah, and I
Speaker 1: guess one of the things that struck me a little
Speaker 1: bit is there's simultaneously a little bit of a question
Speaker 1: about being results of reated and a little bit of
Speaker 1: the question about, well, there's this divide in terms of
Speaker 1: some of the Federal Society people or linked the Federals
Speaker 1: site seem to different greatly from some other ones, and
Speaker 1: those two are are sort of in conflict. And essentially,
Speaker 1: I would say the second point tells the lie of
Speaker 1: the first one. That is the fact of the matter
Speaker 1: is that the type of disagreements not necessarily boss Stock particularly,
Speaker 1: I always hesitate to focus on one case because cases
Speaker 1: are facts specific for the specific case, and they may
Speaker 1: not be a much more general trend. But the differences
Speaker 1: on specific cases you reflect exactly what the organization has
Speaker 1: emphasized over time, which is being serious about it is
Speaker 1: discussing them, debating them. We know we won't always agree
Speaker 1: or do we aspire to what we's agree. We do
Speaker 1: aspire to generate serious conversation and generate it. You know,
Speaker 1: understanding that the American Constitution and the principles enshrined did
Speaker 1: it are the best way us human beings have yet
Speaker 1: devised for governing a country. And what keep that strong
Speaker 1: by vigorous discussion and debate about it, but still paying
Speaker 1: attention to what the text actually says. And if the
Speaker 1: text is really a problem, if it's really wrong and
Speaker 1: you've got a consensus that's wrong, you amend it. And
Speaker 1: every time somebody says, well, gee, you can't amend this,
Speaker 1: it's usually because the country is pretty split. You know,
Speaker 1: if you have a situation where everybody really thinks something drawing,
Speaker 1: if one of them if some horror you know, if
Speaker 1: Brown versus Board or I shouldn't stay this on tape
Speaker 1: because mis quoted. But if Brown versus Board were seven
Speaker 1: how a reversed by the court, it would be passed
Speaker 1: into law instantly, and now passed into laws. But probably
Speaker 1: there'll be a constitutional amendment instant. Yeah. But most of
Speaker 1: the things everybody agrees on, and you know, the Constitution
Speaker 1: is not going to be able. Yeah, I hear you,
Speaker 1: and I hope you're right that we as a country
Speaker 1: would be moral enough to reenact the idea that separate
Speaker 1: is inherently is inherently unequal if it ever were to
Speaker 1: come to that. You know, Heaven forbid, but I want
Speaker 1: to I want to focus on, though, what you were
Speaker 1: just saying, which I think is really interesting and important,
Speaker 1: and it's this, you know, your statement of purpose makes
Speaker 1: it really clear that the purpose of the judiciary, it's
Speaker 1: province and duty is to say what the law is
Speaker 1: and not what it should be. And that proposition assumes
Speaker 1: that we can say what the law is and distinguish
Speaker 1: that from what the law should be. I mean, it's
Speaker 1: a kind of commitment not just to doing it right,
Speaker 1: but to it being possible to do it right. If
Speaker 1: you didn't think it were possible to do it right,
Speaker 1: you'd be a bunch of liberal relativists like the people
Speaker 1: I hang out with. Right, So you can't hold that
Speaker 1: for You have to think it is possible to do
Speaker 1: it right. And then you get a case and again
Speaker 1: we could use Bostock just as an example, but you
Speaker 1: get a case where the text is hard to interpret.
Speaker 1: It says because of sex and on the one hand,
Speaker 1: you have some conservative justices, and I would say the
Speaker 1: justice course such as not just any old conservative, but
Speaker 1: making a bid to inherit Justice Scalia's role as leading
Speaker 1: intellectual conservative on the Court. I don't know whether he'll succeed,
Speaker 1: but he's definitely trying, saying, I read these words to
Speaker 1: mean that a protection that was undreamt of by the
Speaker 1: drafters of this law in nineteen sixty four. They were
Speaker 1: not thinking of gay rights, and they certainly were not
Speaker 1: thinking of trans people's rights is nevertheless entailed by these words.
Speaker 1: And then you have other conservatives, like Justice Alito, saying, oh,
Speaker 1: you must be kidding me. It can't be that the
Speaker 1: meaning of the words what the law is, rather than
Speaker 1: what the law should be, is entailed in this case
Speaker 1: by something that was unimagined by the people who wrote it.
Speaker 1: And you know, at the level of analysis of what
Speaker 1: the people intended, he's certainly correct, right. And so for
Speaker 1: Justice Alito, this decision by conservatives, including two conservatives, is activism.
Speaker 1: It's the thing that the Federal Society's statement of purpose
Speaker 1: is against. And on the other side, it's not activism.
Speaker 1: It's dictated by the text. It's an exact embodiment of
Speaker 1: what the federal Society is supposed to stand for. And
Speaker 1: I guess what I'm trying to say is in a
Speaker 1: world where those two views exist, sure you could say, well,
Speaker 1: we're a big ten, we have room. You know, Justice
Speaker 1: Course such will be just as welcome at the annual
Speaker 1: Convention as will Justice Alito. And I'm sure that's true.
Speaker 1: But they can't both be right, and they can't both
Speaker 1: be right that what they're doing is saying what the
Speaker 1: law is and not what it should be. I mean,
Speaker 1: that's a real disagreement. Yeah, there is probably no theory
Speaker 1: of law or much of anything else that's worthwhile where
Speaker 1: you would where you couldn't have serious debates about exactly
Speaker 1: what's contained in it. I don't find that surprised. I mean,
Speaker 1: I don't want to focus on a suggest on Bostock
Speaker 1: where you know clearly amongst conservatives, course users opinions of
Speaker 1: minority opinions. But it's there are all kinds of cases
Speaker 1: which come up where you know there'll be differing views
Speaker 1: and both will think they're right, and that's fine. The
Speaker 1: problem is you want to have a framework within which
Speaker 1: judges generally try to work and that's sort of where
Speaker 1: I think that whole range of Federalists, and I'd like
Speaker 1: to think a bunch of pep who aren't necessary federalists operate.
Speaker 1: The Federal Society, I think you'll agree, was in some
Speaker 1: way born out of a sense of embattlement, and its
Speaker 1: early years it was very self conscious of being a
Speaker 1: minoritarian movement in a legal establishment that was heavily liberal.
Speaker 1: And over your time in the organization you've seen that
Speaker 1: change as you guys have become the publishment, and then
Speaker 1: in a sense during the Trump years, you hit the jackpot.
Speaker 1: Six of the current Supreme Court justices of nine are
Speaker 1: either current or one time members of the organization, and
Speaker 1: huge numbers of judges on the courts of appeal. And
Speaker 1: your one time colleague Leonard Leo took a leave from
Speaker 1: the Federal Society to go and advise the Trump administration
Speaker 1: on judicial appointments. And some people said, imprecisely but maybe
Speaker 1: truly at some level that Trump had outsourced appealed judicial
Speaker 1: selection to the Federal Society, And certainly we got an
Speaker 1: enormous number of Federal Society affiliated judges on the bench.
Speaker 1: I mean, you couldn't imagine a greater success than what
Speaker 1: you've achieved, I don't think during the Trump administration. So
Speaker 1: what's next? I mean, what remains for the organization after
Speaker 1: having gone from being the margin to the all powerful
Speaker 1: You know, actors, you know, what do you do for
Speaker 1: an encore? Well, I mean once saying do you understimate
Speaker 1: maybe the people's imagination? More seriously, look, I mean you
Speaker 1: already stated one huge area of the law schools, and
Speaker 1: you know we have a very very long way to
Speaker 1: go to create, from the standards say, of the national
Speaker 1: political scene, a balance in the law schools. That's one
Speaker 1: huge area. How do you do that? By the way,
Speaker 1: what is the sort of Since you guys had a
Speaker 1: thirty year strategy that worked for the judiciary, I might
Speaker 1: guess is it will now work for the law schools.
Speaker 1: But how do you do it? I admire your confidence.
Speaker 1: I mean, what we try to do and what we
Speaker 1: very much hope will work, is the same sort of
Speaker 1: things we've done all along, which is trying to foster
Speaker 1: this type of debate and discussion, and we do think
Speaker 1: that will persuade a lot of people over time, to
Speaker 1: the extent you can get ideas fairly hurt. I would
Speaker 1: say that one other thing that causes some confusion is
Speaker 1: all the emphasis on judges which are in nuditia, which
Speaker 1: is extremely important. But there are all kinds of other
Speaker 1: aspects of law and the impact of law and society,
Speaker 1: where there's all kinds of discussions regulation, how and what
Speaker 1: the role of law should be in sort of guiding
Speaker 1: the country in certain ways, all the debates about the
Speaker 1: laws of moral force, the question of leaving people free
Speaker 1: to do what they want to do even when you
Speaker 1: think it's a mistake. There's a whole battle about elites
Speaker 1: versus sort of the average person in terms of there
Speaker 1: are a lot of elites who think, you know, really
Speaker 1: most people don't fully understand a lot of these things
Speaker 1: and they need help. And then there are a lot
Speaker 1: of people will say they should make their own decisions,
Speaker 1: and yeah, give them information, but don't try to force them.
Speaker 1: So they are all those battles and discussions. How do
Speaker 1: you respond to the view that's sometimes taken by critics
Speaker 1: of the federal society, especially from the left, that because
Speaker 1: of your funders, you inevitably end up pushing a view
Speaker 1: that is consonant with corporate interests in some way. I
Speaker 1: mean I'm sure you have an answer to that. Well,
Speaker 1: partly I don't think it's true. Well, that's part of
Speaker 1: the answers to say more about it. I mean, if
Speaker 1: you look get big business right now in the country,
Speaker 1: it's not good all clear that pushing in the a
Speaker 1: quote conservative or libertarian direction. But we have a pretty
Speaker 1: basic rule we either seek nor take funds that. You know,
Speaker 1: we make it pretty clear the type of things we do.
Speaker 1: If people want to fund that, we're delighted. If they
Speaker 1: don't want to fund that, then find somewhere else to give.
Speaker 1: You know, we don't take restricted grants to do X,
Speaker 1: Y and z. We might take a restricted grant to
Speaker 1: have a discussion of tech policy or something. Oh, we
Speaker 1: wouldn't take a restricted grant to have it more limited
Speaker 1: than that. And you know, if we end up having
Speaker 1: discussions and whoever the donor is decides they're unhappy, they
Speaker 1: don't give to us again, and that's fine, that's their decision.
Speaker 1: But you know, in part the people involved in this
Speaker 1: went into it because of the ideas and because of
Speaker 1: the commitment of the ideas. I guess I'm probably the
Speaker 1: person who's been you know, most committed in terms of
Speaker 1: being the CEO and being you know, having a Favy
Speaker 1: fundraising role, it wouldn't make sense to me to try
Speaker 1: to raise more money by doing things that I don't
Speaker 1: think you're consistent with what we really want. So your
Speaker 1: mission driven and then if people want to fund that,
Speaker 1: they come along, and that's that's the answer that you
Speaker 1: can give. Yeah, and very consciously so only the people
Speaker 1: we have, anybody we have is helping us on fundraising
Speaker 1: or development, we make that those instructions clear. Another way
Speaker 1: of putting that would be that if the critics are
Speaker 1: saying the reason that you take view X and why
Speaker 1: that's conservative is, who's funny you're saying this the other
Speaker 1: way around? We have those views, We actually are those things.
Speaker 1: We actually are conservators and libertarians, and then people come
Speaker 1: and fund us because they like what we think. I
Speaker 1: would also say one other thing, anybody who looks at
Speaker 1: corporate donations, they're philosophically spread across the map. Yes, there's
Speaker 1: very little indication that you know, you can make more
Speaker 1: of that argument with foundations. I mean, it's interesting and
Speaker 1: sometimes there are questions about, well, your donors are most
Speaker 1: of our donorshire listener any report, But we do have
Speaker 1: a few who requested anonymity, and we have a number
Speaker 1: who've given through a couple of donor advised funds. And
Speaker 1: I'd say a couple of things about that, because I
Speaker 1: know this question comes up, soidal's good opportunity. What is
Speaker 1: that People request dunonymity for probably three basic reasons. There
Speaker 1: are some who conrest unnamity for something closer to the
Speaker 1: little idea of you know, well, they're just trying to
Speaker 1: hide exactly what they're giving because I think people won't
Speaker 1: approve it or will hurt their business or hurt them
Speaker 1: in some way or other. A second reason is because
Speaker 1: they don't want a bunch of other people coming and
Speaker 1: asking them for money. And if they're giving, particularly giving
Speaker 1: sizeable amounts to a few organizations and it's listed, everybody
Speaker 1: in the world's going to be knocking on their door,
Speaker 1: and they don't want that. And the third reason is
Speaker 1: there's a widespread view, particularly in religious areas, but not
Speaker 1: exclusively that you know, it's not universal, but a wise
Speaker 1: for review that donations are we do this for the
Speaker 1: good that we hope we will be doing. We don't
Speaker 1: do it for personal and grandizement. I'm not saying that
Speaker 1: people who do who be listed are doing first line randizement.
Speaker 1: But that's a view of some donors too. So what
Speaker 1: percentage do you think roughly of your donations are anonymous
Speaker 1: or in one form or another. You know, it's an
Speaker 1: interesting question. It makes a big difference whether you count
Speaker 1: the donor advised funds or not. We'll say, count them
Speaker 1: and give me a ballpark. I count them. I don't know,
Speaker 1: might be a quarter or something like that. Maybe a
Speaker 1: little bit more, not much more. And the other thing
Speaker 1: is if somebody says, well, you know you're you're hiding
Speaker 1: the ball because you some of donors to donor trust,
Speaker 1: I don't know who they are. I wish I did,
Speaker 1: but I don't. Right, So you know they can't really
Speaker 1: real anonymity, right, yeah, right, I can't have very much influence.
Speaker 1: I mean when I don't know who they are. Last
Speaker 1: question for you. For twenty years, so not all, but
Speaker 1: a good chunk of the life of the federal society.
Speaker 1: Liberals have been saying, we have to have our own
Speaker 1: federalst society, and yet the American Constitution Society and other
Speaker 1: organizations that have tried haven't, by common consensus, really gotten
Speaker 1: close to having the kind of impact or influence that
Speaker 1: you have had. What are they missing? What's the secret
Speaker 1: sauce that your imitators, your self conscious imitators have not
Speaker 1: managed to pull off well. I think there are a
Speaker 1: couple of factors. One is that we are kind of
Speaker 1: the only game in town for the type of ideas
Speaker 1: we're talking about in law. There are so many other
Speaker 1: groups on the left. They're pursuing somewhat similar things, and
Speaker 1: I don't think inherently one or the other strategy is better.
Speaker 1: I have no problem at all with sort of diversification
Speaker 1: in that kind of way. I think that's been one factor.
Speaker 1: I think the second factor goes to the core of
Speaker 1: what we do, which is, in spite of questions being
Speaker 1: raised about it, we are an organization does not take positions.
Speaker 1: We are an organization that's serious about debate and discussion.
Speaker 1: I think we are able to attract a lot of
Speaker 1: people who may not think they necessarily agree with a
Speaker 1: lot of the things many of our members think. I think, boy,
Speaker 1: it's an interesting place to be in to discuss ideas.
Speaker 1: When ACS was Market Cuts, I was first started looked
Speaker 1: with two different executive directors there who came to me
Speaker 1: and saying, you know, Jaya, basically, any thoughts, and I
Speaker 1: was happy to give. Well. I thought, I actually I
Speaker 1: can prove this because I have a quote in the
Speaker 1: New York Times and that effect back when the ACS
Speaker 1: had started. But I thought and believed that if they
Speaker 1: would be an organization on the left committed to debate
Speaker 1: and discussion in the way we were, I thought it
Speaker 1: would be a really good thing for both the left
Speaker 1: in the country. And I think the more more we
Speaker 1: can have civil, serious, energetic and sharp debates and discussions,
Speaker 1: not of the old cross fire line where people yell
Speaker 1: at each other, but of the lines where people really
Speaker 1: are trying to exchange ideas, I think all of us benefit.
Speaker 1: And you know, I certainly believe in the broad ideas
Speaker 1: the federal side discussed, but I also believe that that
Speaker 1: type of discussion I think may help something many of
Speaker 1: those ideas, but I think the extent it more across society,
Speaker 1: I think it will help all of us. Gene, I
Speaker 1: want to thank you for your candor and for the conversation,
Speaker 1: and thank you very much for joining us, and I
Speaker 1: look forward to speaking again in the future sometime. Thanks
Speaker 1: so much. Take care. I was grateful to Gene Meyer
Speaker 1: for living up to the stated principles of the Federalist
Speaker 1: Society and being willing to discuss openly challenges and questions
Speaker 1: around the Federalist Society it's funding, the way it operates,
Speaker 1: and the way it's going to operate in the future.
Speaker 1: I hope you found the conversation as engaging as I did.
Speaker 1: You can buy our new audiobook, Takeover How a Conservative
Speaker 1: Student Club Captured the Supreme Court, on Pushkin's website, Pushkin
Speaker 1: dot FM, or on Audible or wherever you get your audiobooks.
Speaker 1: Until the next time I speak to you, Be careful,
Speaker 1: be safe, and be well. Deep background is brought to
Speaker 1: you by Pushkin Industries. Our producer is Mo laboord our
Speaker 1: engineer is Martin Gonzalez, and our shorerunner is Sophie Crane mckibbon.
Speaker 1: Editorial support from noahm Osband. Theme music by Luis Guerra
Speaker 1: at Pushkin. Thanks to Mia Lobell, Julia Barton, Lydia, Jean Coott,
Speaker 1: Heather Faine, Carl mcgiori, Maggie Taylor, Eric Sandler, and Jacob Weisberg.
Speaker 1: You can find me on Twitter at Noah R. Feldman.
Speaker 1: I also write a column for Bloomberg Opinion, which you
Speaker 1: can find at bloomberg dot com slash Feldman. To discover
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