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queenluaIdeas with Consequences: The Federalist Society and the Conservative Counterrevolution by Amanda Hollis-Brusky
"Why does legal academia seem to produce so many total dumbshits?" I wondered aloud to myself, after reading some inanity or another from Alan Dershowitz (who I remember being weirdly widely respected in the 90s/00s mainstream media? not that I was paying too much attention back then, but, the gulf between "my vague impression of the guy" and "what I thought after actually reading some stuff from the guy" is so vast, yikes). Or maybe I was just laughing my ass off at the Stanford Federalist Society crying crocodile tears over this totally hilarious satirical flyer. Or maybe I was just getting all broody over the state of the federal judiciary in general. Who knows!
Anyway, this is totally not my field, and my knowledge of the judiciary is admittedly limited to, like, "I got on a Supreme Court podcast kick for a bit," and "Sarah Jeong's tweets are pretty dope." Which does not a decent grounding make, so I decided to go find a book on the topic to bone up a bit—
This book was... probably not the right choice! It's got a definite "I am packaging my PhD for publication" feel, and is more focused on being in dialogue with some political science scholarship that I'm not familiar with, rather than being a generalist history.
But, I still had some fun with it:
1)
The author's thesis builds off previous work by a guy named Peter M. Haas, describing epistemic communities: groups of knowledge-based experts who help politicians make policy. Haas's work has focused on expert scientists. Hollis-Brusky argues that the Federalist Society is best modeled as a political epistemic network—a PEN. Unlike epistemic networks, the FedSoc's field doesn't have any empirical grounding or ability to be disproven—you can't "disprove" a fact about the Constitution the way you can disprove a scientific hypothesis. However, they serve a similar function of "discovering" new legal knowledge, which provides judges with the scholarly legitimacy & precedent-based grounding to rule according to the FedSoc's ideas.
(cursed thought: are LessWrongers a PEN under this model—)
(other cursed thought: this whole framing perhaps gestures at the root of my vague sense that legal academia is so... grifty? Their only real source of authority is Well An Important Person Said This So It Must Be Right, so it's far more oroborus-shaped than, say, the sciences, which for-sure have their own problems but at least it's not turtles all the way down.)
2)
To prove her point, Hollis-Brusky describes the mechanisms FedSoc has used to, say, transform originalism from "some heterodox nonsense" to "a Real Actual Legal Theory." And, damn, these guys know what they're doing.
The Federalist Society's scholarly tactics remind me powerfully of software exploit development (SORRY, I'M BEING PREDICTABLE, I KNOW). The Fedsoc dudes want a particular result [X]. They squint at old Supreme Court cases and decide that [Y]'s foundation is a little dodgy and maybe you can get it overturned favorably. Then they just blast law review articles, seminars, etc, on the topic of [Y], until that idea's "in the water supply" and they can launch a solid challenge at [Y] using argument [Z].
This is essentially the same thought process as "I want root in [X]. Binary [Y] seems like the juiciest possible entry point; it's some crufty old C++ thing that probably has bugs. I'll throw fuzzer [Z] at it until it surfaces some entertaining memory access bugs, string 'em together, pop the system, launch calc.exe, and do my victory lap."
(I've also argued writing aggressively canon-compliant fanfiction is like exploit development. Um. Everything is exactly the same, or something.)
The specific case studies the author uses to explore these attacks are: gun rights, campaign finance, and state sovereignty (i.e. Tenth Amendment stuff).
--> Gun Rights: apparently very few legal scholars took the personal (as opposed to collective) right to bear arms seriously until proto-FedSoc and FedSoc people started publishing on the subject in the late 70s/80s. The way in which the scholars decide to revitalize the Second Amendment is interesting, though: while they think the most technically-viable path is by using the Due Process clause, FedSoc people hate the Due Process clause, because it's been used to validate stuff like a right to abortion, privacy,, gay marriage, etc. Instead, they invest a ton of legal scholarship in the Privileges or Immunities Clause of the Fourteenth Amendment, While charming, this approach would involve overturning the Slaughterhouse Cases, which were ruled in 1873, so uh... kinda upends a lot of precedent! And while the majority opinions in DC vs Heller (2008) and Mcdonald vs Chicago (2010) indeed decided to rule in favor of gun rights without touching Slaughterhouse, apparently Clarence Thomas wrote a concurrence that waxed poetic about how he would in fact like to do the Slaughterhouse thing. (In general, I did not realize what an absolute FedSoc true believer Thomas was until I read this book. Like, generally the FedSoc is only able to win partial victories from the court, but Thomas dutifully writes all these opinions that repeat the most FedSoc of FedSoc talking points.
--> Campaign Finance: author gives a very detailed blow-by-blow of the scholarship leading to the Citizens United decision in 2010. The key problem here is that getting a reading of the first amendment that forbids regulation of corporate finance/speech would bean overturning First National Bank of Boston vs Bellotti, a 1978 Supreme Court decision, and even the conservative justices tend to be anxious about overturning precedent that's been established for decades. Pretty good overview of how, even though "originalism" sounds like it should refer to some grounded, back-to-the-basics, little-c conservative principles, it's often used to quite radical ends—privileging a very modern and specific reading of the Constitution over the many decades of people who have assumed the concrete law-as-it's-practiced view.
--> State Sovereignty: Conventional legal opinion, pre-1980s, was that the Tenth Amendment was mostly a clearing-your-throat amendment and not super relevant—particularly when they started using the Commerce Clause to implement, y'know, civil rights and national healthcare programs and stuff. This led to a midcentury consensus that the federal vs state division of powers is more like that of trusted partners, with states working to implement federal policies in a way that's most effective and nimble for their constituency.
FedSoc people hate this, and don't think state's should be mere "local administrative offices" of the federal government; they read the Tenth Amendment as very specifically letting states tell the feds to fuck off (which leads to interesting case law around, e.g., to what extent states can just decide not to enforce federal laws, see Arizona vs US 2012).
This is one of the FedSoc hobbyhorses that's more confusing to me, I'll confess. Like, speaking purely in realpolitik terms, one of the US's big advantages in the world economy is that (1) we're really rich and (2) we have a fairly unified economy, regulations, etc. Reading the Tenth Amendment in a way that makes it a huge pain-in-the-ass to administrate any federal program just seems like shooting yourself in the foot. I mean, yeah, I know what the counterarguments are; I just think they're kinda dumb in the face of said material reality :P
In any case, they got a partial victory here when the Supreme Court ruled that the ACA's individual mandate is an unlawful exercise of the Commerce Clause... but you can still do the individual mandate as a tax, that's allowed.
More surprising to me was that "telling the states to expand Medicaid or risk losing their Medicaid funding altogether" was not deemed Constitutional? I'd have to dig into the legal details more, since like, I know Medicaid expansion did end up occurring in a lot of places, but like... idk, this feels hair-split-y to me, based on my understanding of federal funding; I feel like most Fed influence is via many-strings-attached funding.
3) I was kinda facepalming while reading the last section, where the author describes the legal left's attempts to form their own Federalist Society-type entity, mainly in the form of the American Constitution Society. Problem is, there's lots of institutions that "accredit" liberal lawyers (most Ivy League schools, American Bar Association, etc), so they just don't have the unified mission statement and set of beliefs and such that the FedSoc people have. (Like, they're trying to counter/debunk originalism, but one of their dudes is a Yale law professor who went rogue and is like "actually originalism is great because it supports liberal legal rulings," which is exactly the type of trolling I can love.)
It also points at, fleetingly, another problem: the FedSoc, though it advocates for a view of the world I dislike, seems demonstrably more little-d democratic than most of the legal left's shibboleths. Respect in the FedSoc comes from attending meetings at your school or local chapter, and writing articles on FedSoc talking points, and generally just advocating for the society. Respect on the other side of the law is more about... make sure you graduate top of your class at Yale or Harvard, I guess? Just a little bit more of an elitist vibe, which I think legitimately hurts their cause. (Though a lot of this, of course, is a supply-side effect. If I'm a Democrat president, there's lots of sources for me to nominate judges from; if I'm a Republican president, it's pretty much... just the FedSoc at this point, lol.)
SO YEAH, that's the book. Reading this deepened the sense I've had for a while now, that I really need to try and understand the Reagan era better. I've had a general sense for a while now that the 1970s was the inflection point where a lot of progressive stuff got turned aside (see: the aborted attempt to rein in the CIA's excesses, the Equal Rights Amendment, hsingle-payer healthcare). Those things died on the vine, and have never felt quite as live since (see: the total failure of accountability for modern CIA fuckery, for starters). What's not as clear to me is why then and why Reagan as the answer. Did 70s stagflation destroy trust in what was seen as technocratic federal elites? did the Vietnam War break public trust in a big way? and so on and so forth. So, uh, if anyone has good recommendations on Reagan-era histories, I'm all ears.
"Why does legal academia seem to produce so many total dumbshits?" I wondered aloud to myself, after reading some inanity or another from Alan Dershowitz (who I remember being weirdly widely respected in the 90s/00s mainstream media? not that I was paying too much attention back then, but, the gulf between "my vague impression of the guy" and "what I thought after actually reading some stuff from the guy" is so vast, yikes). Or maybe I was just laughing my ass off at the Stanford Federalist Society crying crocodile tears over this totally hilarious satirical flyer. Or maybe I was just getting all broody over the state of the federal judiciary in general. Who knows!
Anyway, this is totally not my field, and my knowledge of the judiciary is admittedly limited to, like, "I got on a Supreme Court podcast kick for a bit," and "Sarah Jeong's tweets are pretty dope." Which does not a decent grounding make, so I decided to go find a book on the topic to bone up a bit—
This book was... probably not the right choice! It's got a definite "I am packaging my PhD for publication" feel, and is more focused on being in dialogue with some political science scholarship that I'm not familiar with, rather than being a generalist history.
But, I still had some fun with it:
1)
The author's thesis builds off previous work by a guy named Peter M. Haas, describing epistemic communities: groups of knowledge-based experts who help politicians make policy. Haas's work has focused on expert scientists. Hollis-Brusky argues that the Federalist Society is best modeled as a political epistemic network—a PEN. Unlike epistemic networks, the FedSoc's field doesn't have any empirical grounding or ability to be disproven—you can't "disprove" a fact about the Constitution the way you can disprove a scientific hypothesis. However, they serve a similar function of "discovering" new legal knowledge, which provides judges with the scholarly legitimacy & precedent-based grounding to rule according to the FedSoc's ideas.
(cursed thought: are LessWrongers a PEN under this model—)
(other cursed thought: this whole framing perhaps gestures at the root of my vague sense that legal academia is so... grifty? Their only real source of authority is Well An Important Person Said This So It Must Be Right, so it's far more oroborus-shaped than, say, the sciences, which for-sure have their own problems but at least it's not turtles all the way down.)
2)
To prove her point, Hollis-Brusky describes the mechanisms FedSoc has used to, say, transform originalism from "some heterodox nonsense" to "a Real Actual Legal Theory." And, damn, these guys know what they're doing.
The Federalist Society's scholarly tactics remind me powerfully of software exploit development (SORRY, I'M BEING PREDICTABLE, I KNOW). The Fedsoc dudes want a particular result [X]. They squint at old Supreme Court cases and decide that [Y]'s foundation is a little dodgy and maybe you can get it overturned favorably. Then they just blast law review articles, seminars, etc, on the topic of [Y], until that idea's "in the water supply" and they can launch a solid challenge at [Y] using argument [Z].
This is essentially the same thought process as "I want root in [X]. Binary [Y] seems like the juiciest possible entry point; it's some crufty old C++ thing that probably has bugs. I'll throw fuzzer [Z] at it until it surfaces some entertaining memory access bugs, string 'em together, pop the system, launch calc.exe, and do my victory lap."
(I've also argued writing aggressively canon-compliant fanfiction is like exploit development. Um. Everything is exactly the same, or something.)
The specific case studies the author uses to explore these attacks are: gun rights, campaign finance, and state sovereignty (i.e. Tenth Amendment stuff).
--> Gun Rights: apparently very few legal scholars took the personal (as opposed to collective) right to bear arms seriously until proto-FedSoc and FedSoc people started publishing on the subject in the late 70s/80s. The way in which the scholars decide to revitalize the Second Amendment is interesting, though: while they think the most technically-viable path is by using the Due Process clause, FedSoc people hate the Due Process clause, because it's been used to validate stuff like a right to abortion, privacy,, gay marriage, etc. Instead, they invest a ton of legal scholarship in the Privileges or Immunities Clause of the Fourteenth Amendment, While charming, this approach would involve overturning the Slaughterhouse Cases, which were ruled in 1873, so uh... kinda upends a lot of precedent! And while the majority opinions in DC vs Heller (2008) and Mcdonald vs Chicago (2010) indeed decided to rule in favor of gun rights without touching Slaughterhouse, apparently Clarence Thomas wrote a concurrence that waxed poetic about how he would in fact like to do the Slaughterhouse thing. (In general, I did not realize what an absolute FedSoc true believer Thomas was until I read this book. Like, generally the FedSoc is only able to win partial victories from the court, but Thomas dutifully writes all these opinions that repeat the most FedSoc of FedSoc talking points.
--> Campaign Finance: author gives a very detailed blow-by-blow of the scholarship leading to the Citizens United decision in 2010. The key problem here is that getting a reading of the first amendment that forbids regulation of corporate finance/speech would bean overturning First National Bank of Boston vs Bellotti, a 1978 Supreme Court decision, and even the conservative justices tend to be anxious about overturning precedent that's been established for decades. Pretty good overview of how, even though "originalism" sounds like it should refer to some grounded, back-to-the-basics, little-c conservative principles, it's often used to quite radical ends—privileging a very modern and specific reading of the Constitution over the many decades of people who have assumed the concrete law-as-it's-practiced view.
--> State Sovereignty: Conventional legal opinion, pre-1980s, was that the Tenth Amendment was mostly a clearing-your-throat amendment and not super relevant—particularly when they started using the Commerce Clause to implement, y'know, civil rights and national healthcare programs and stuff. This led to a midcentury consensus that the federal vs state division of powers is more like that of trusted partners, with states working to implement federal policies in a way that's most effective and nimble for their constituency.
FedSoc people hate this, and don't think state's should be mere "local administrative offices" of the federal government; they read the Tenth Amendment as very specifically letting states tell the feds to fuck off (which leads to interesting case law around, e.g., to what extent states can just decide not to enforce federal laws, see Arizona vs US 2012).
This is one of the FedSoc hobbyhorses that's more confusing to me, I'll confess. Like, speaking purely in realpolitik terms, one of the US's big advantages in the world economy is that (1) we're really rich and (2) we have a fairly unified economy, regulations, etc. Reading the Tenth Amendment in a way that makes it a huge pain-in-the-ass to administrate any federal program just seems like shooting yourself in the foot. I mean, yeah, I know what the counterarguments are; I just think they're kinda dumb in the face of said material reality :P
In any case, they got a partial victory here when the Supreme Court ruled that the ACA's individual mandate is an unlawful exercise of the Commerce Clause... but you can still do the individual mandate as a tax, that's allowed.
More surprising to me was that "telling the states to expand Medicaid or risk losing their Medicaid funding altogether" was not deemed Constitutional? I'd have to dig into the legal details more, since like, I know Medicaid expansion did end up occurring in a lot of places, but like... idk, this feels hair-split-y to me, based on my understanding of federal funding; I feel like most Fed influence is via many-strings-attached funding.
3) I was kinda facepalming while reading the last section, where the author describes the legal left's attempts to form their own Federalist Society-type entity, mainly in the form of the American Constitution Society. Problem is, there's lots of institutions that "accredit" liberal lawyers (most Ivy League schools, American Bar Association, etc), so they just don't have the unified mission statement and set of beliefs and such that the FedSoc people have. (Like, they're trying to counter/debunk originalism, but one of their dudes is a Yale law professor who went rogue and is like "actually originalism is great because it supports liberal legal rulings," which is exactly the type of trolling I can love.)
It also points at, fleetingly, another problem: the FedSoc, though it advocates for a view of the world I dislike, seems demonstrably more little-d democratic than most of the legal left's shibboleths. Respect in the FedSoc comes from attending meetings at your school or local chapter, and writing articles on FedSoc talking points, and generally just advocating for the society. Respect on the other side of the law is more about... make sure you graduate top of your class at Yale or Harvard, I guess? Just a little bit more of an elitist vibe, which I think legitimately hurts their cause. (Though a lot of this, of course, is a supply-side effect. If I'm a Democrat president, there's lots of sources for me to nominate judges from; if I'm a Republican president, it's pretty much... just the FedSoc at this point, lol.)
SO YEAH, that's the book. Reading this deepened the sense I've had for a while now, that I really need to try and understand the Reagan era better. I've had a general sense for a while now that the 1970s was the inflection point where a lot of progressive stuff got turned aside (see: the aborted attempt to rein in the CIA's excesses, the Equal Rights Amendment, hsingle-payer healthcare). Those things died on the vine, and have never felt quite as live since (see: the total failure of accountability for modern CIA fuckery, for starters). What's not as clear to me is why then and why Reagan as the answer. Did 70s stagflation destroy trust in what was seen as technocratic federal elites? did the Vietnam War break public trust in a big way? and so on and so forth. So, uh, if anyone has good recommendations on Reagan-era histories, I'm all ears.
no subject
Date: 2021-06-28 07:24 pm (UTC)