Spring of 1982. America was mired in a recession—still-new President Ronald Reagan was being forced to defend to a skeptical public his economic policies—while members of Congress fretted about the chances of a nuclear war with the Soviet Union. Despite this uncertainty, a few conservative students at elite law schools sensed not anxiety but a moment of opportunity. Inspired by Reagan’s ideology and emboldened by his election, they did something ambitious to the point of audacious. They asked a collection of the country’s most notable right-leaning scholars, judges and Department of Justice officials to assemble at one of the very hubs of liberal orthodoxy, the campus of Yale University. Convened principally by Steven Calabresi, who was at Yale Law, and Lee Liberman and David McIntosh, who were at University of Chicago Law, some 200 people arrived in New Haven, Connecticut, on the last weekend of April for a three-day symposium.
It had a dry title—“A Symposium on Federalism: Legal and Political Ramifications”—and it easily could have been just another set of lectures, of interest only to a small lot of participants and attendees, the kind of higher-ed, corkboard-flyer get-togethers that happen all the time with no broader fanfare or larger lasting consequences. But at this one, as speakers castigated what they viewed as coastal elites and a leftist media and legal establishment and argued for a more “originalist” reading of the Constitution, people present felt a new sort of buzz. In the hallways, between the sessions, the vibe was more than just brainy. It was practically giddy.
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“I sense,” Ted Olson, then an assistant attorney general in the DOJ’s Office of Legal Counsel, declared in his talk that weekend, “that we are at one of those points in history where the pendulum may be beginning to swing in another direction.” It would prove to be one of the most prescient things anybody said at the entire symposium.
When I recently read to him over the telephone this part of a transcript of his speech, Olson got audibly excited. “I’m proud of myself,” he said. “The feeling was in the air,” he told me, “that things could happen.”
Here, in fact, is what happened: the birth of the Federalist Society. In the 36 years since, it has become one of the most influential legal organizations in history—not only shaping law students’ thinking but changing American society itself by deliberately, diligently shifting the country’s judiciary to the right. Its members filtered into presidential administrations and federal courts. Robert Bork, one of the featured speakers at that first symposium, was nominated to the Supreme Court, and, although he wasn’t confirmed, another big-name speaker from that weekend later was: Antonin Scalia, who would anchor the Supreme Court’s conservative wing. Today, a remarkable four of nine of the country’s top justices have Federalist Society ties, and the confirmation of Brett Kavanaugh—literally picked from a list given to President Donald Trump by the organization’s executive vice president—would make five.
Over the years, the Federalists have honed a disciplined, excessively modest narrative of their origins and purpose—that they are simply a facilitator of the exchange of ideas, a high-minded fulcrum of right-of-center thought, a debating society that doesn’t take overtly partisan, political positions. That narrative is not wrong. It’s just not the whole truth. The full story of that initial weekend—based on interviews with people who were there, as well as the seldom-read words of the speeches recorded in a 1982 issue of the conservative Harvard Journal of Law and Public Policy—reveals something different. The effort was, from the get-go, aggressively political. There was a feeling of steeling for a fight.
“I think they did see it as a long-term battle,” says Amanda Hollis-Brusky, a Pomona College political scientist and author of Ideas with Consequences, a book about the Federalist Society.
The symposium program (“Federalism from the Standpoint of the Department of Justice,” “Some Thoughts on Applied Federalism,” “Federalism—Why Should We Care?”) could have been seen as mind-numbingly narrow and academic, but the thrust of the topics of discussion that weekend prefigured with startling accuracy the national legal and cultural battles to come.
Bork, for example, who had been a law professor at Yale and had just become a federal judge, spoke of “the onslaught of the New Deal” and “the gentrification of the Constitution.” Abortion and “acceptable sexual behavior,” he said, should be “reserved to the states.” Pointedly, with Roe v. Wade, he said, the Supreme Court had “nationalized an issue which is a classical case for local control. There is simply no national moral consensus about abortion, and there is not about to be.”
“Keep in mind,” advised Scalia, then a law professor at the University of Chicago four months from his first judgeship, “that the federal government is not bad but good. The trick is to use it wisely.”
The effort was, from the get-go, aggressively political. There was a feeling of steeling for a fight.
Perhaps even more important than the content of the speeches was what happened in the less scheduled moments. Outside the lecture hall, over lunch and dinner and drinks, people who knew one another’s work and ideology in many instances met for the first time. Scalia and Bork took smoke breaks, kibitzing with eager, genuflecting students. “The fact that the students wanted to talk to you, and wanted to hear your views, I thought, ‘Boy, this is terribly refreshing,’” Olson told me. “And to have these kinds of conversations, it was almost as if there were people that were hungry that just needed to be fed.” Morton Blackwell, president of the Leadership Institute and a longtime organizer of young conservatives, recalled the sensation of sparks flying. “Nice sparks,” he said in an interview. “Bright sparks.” They continued into the evenings. “There were parties that went into the night,” said Grover Joseph Rees III, another one of the speakers. Students with sleeping bags crammed into dorm rooms. So, too, even, did some of the presenters. “I remember,” said Michael McConnell, then the 27-year-old assistant general counsel to the Office of Management and Budget and now a law professor at Stanford. “I slept on somebody’s floor that I didn’t even know.”
It is no exaggeration to suggest that it was perhaps the most effective student conference ever—a blueprint, in retrospect, for how to marry youthful enthusiasm with intellectual oomph to achieve far-reaching results.
When I talked with Rees, he likened the founding weekend of the Federalist Society to Woodstock. “I went to Woodstock,” said Rees, who was a law professor at the University of Texas when he went to the symposium and would go on to become a judge and ambassador. “And all I knew was I was going to a rock festival. I didn’t know it was going to be Woodstock.”
***
The seeds of the symposium and, ultimately, the Federalist Society as a whole had been planted at least two years earlier. In the fall of 1980, Calabresi would recall in an interview with the ABA Journal, he was struck by what happened when the 88 members of his first-year class at Yale Law were asked whether they had voted for Reagan: Only two people raised their hands. Either the student body was really that ideologically imbalanced, or many were reluctant to be open about their conservative preferences. It was almost immaterial. “We needed an organization to at least encourage others to come forward,” Calabresi said. In Chicago, along with McIntosh, Liberman thought the same thing. “There was no student organization that seemed interested in Reagan’s legal ideas,” she said later in an interview with a University of North Carolina doctoral student, Jonathan Riehl, who wrote his dissertation about the Federalist Society, “and this seemed a little odd, given that he had just won the presidency.”
It had been this way for decades. “The law schools were exceedingly one-sided,” McConnell, the Stanford law professor, told me. Being a conservative then at a college or a law school, Scalia later said to biographer Joan Biskupic, made one feel “isolated, lonely … like a weirdo.” Spencer Abraham, the former senator from Michigan, started the Harvard Journal of Law and Public Policy when he was a student at Harvard Law in the late 1970s, and he described the publication in its first volume as vox clamantis in deserto, Latin for “a voice crying in the wilderness.”
In this tilted environment, Liberman, McIntosh and Calabresi saw themselves as “sort of a resistance movement,” according to Danielle McLaughlin, who co-authored, along with Michael Avery, The Federalist Society: How Conservatives Took the Law Back from Liberals. The three of them had been friends as undergraduates at Yale. All of them were active in the formative Yale Political Union, with Calabresi and McIntosh serving in consecutive years as president of the organization. Liberman had volunteered for Reagan in his campaigns in 1976 and 1980, and McIntosh had joined the effort in 1980. They had interned for senators in the summers. And now, said Hollis-Brusky, they began thinking about ways to “to build up a legal counter-elite.”
“Part of Reagan’s policy was to build up forces in battleground nations in order to help topple enemy regimes,” Calabresi told Riehl, “and I thought of us as kind of the same equivalent in law schools.”
At Yale, Calabresi and a couple of conservative law students formed a student group in the fall of 1981. Eating lunch one day, according to a subsequent telling in the journal at Harvard, they batted about possible names. The Ludwig von Mises Society? The Alexander Bickel Society? The Anti-Federalist Society? The Anti-Federalists, after all, were the ones who sought a more decentralized government at the time of the founding of the country. They landed, though, on the Federalist Society, because it invoked the Federalist Papers and the long-running American debate about the appropriate balance of power between the national and state governments. Calabresi and the nascent organization recruited as advisers Bork, who had been a solicitor general and (briefly) acting attorney general under Richard Nixon, and Ralph Winter, another conservative bigwig at Yale Law who also was one of Reagan’s early judicial appointees.
In Chicago, Liberman and McIntosh, who talked frequently by phone with Calabresi at Yale, started a similar student group. Their faculty adviser? Scalia. At their first meeting, according to Biskupic’s biography, he read a passage from Federalist No. 49 about the power of ideas being contingent on a breadth of belief: “The reason of man, like man himself, is timid and cautious when left alone, and acquits firmness and confidence in proportion to the number with which it is associated.” In essence: “Intellectual courage,” Scalia said, is based on strength in numbers.
So the two groups started by three friends with the backing of star professors endeavored to expand those numbers. “They had chutzpah,” Olson told me. Connections, too. They started to plan for a first symposium by sending out invitations.
“It certainly sounded inviting enough,” recalled Lino Graglia, a law professor at the University of Texas who had written a book about the ills of affirmative action and agreed to speak at the symposium. “They said they were getting together a bunch of well-known figures.” Beyond that, he said, in contrast to the prevailing liberal slant at law schools, this “was going to introduce a conservative view—and, well, that had a lot of appeal.”
“We wanted to be able to talk about ideas, share ideas,” McConnell said.
It was, remembered Charles Fried, a law professor at Harvard who would be the solicitor general in Reagan’s second term, “an intriguing invitation—the very name.”
“I think this will be a lot of fun,” Liberman wrote to Bork, “particularly watching the reaction of Yale, which will think it has created a Frankenstein monster.”
They had the beginnings of buy-in. Now they needed arguably an even more important lubricant. Money. Leveraging a recommendation from Scalia, Calabresi contacted the conservative Institute for Educational Affairs to ask. “As Professor Scalia of the University of Chicago Law School mentioned to you last Wednesday on the telephone, we are interested in holding a symposium,” he wrote early that February in a letter archived among Bork’s papers at the Library of Congress. “Professor Scalia said you thought I.E.A. might be quite interested in sponsoring and funding such a symposium.” Calabresi estimated that it would cost “in the neighborhood of $24,000.” It ended up being closer to $25,000. And it worked. IEA wrote a check that covered most of the cost. The rest came from donors, including the John M. Olin Foundation and the Intercollegiate Studies Institute.
A week and a half later, Liberman sent a letter to Bork. Her excitement was palpable on the page—as was her ambition. She evidently had been angling for his help to get Supreme Court Justice William Rehnquist to consider speaking at the symposium. “I have no idea if this would matter to him at all,” Liberman wrote, “but if it would, we could probably come up with some sort of award to present to him at the Saturday banquet.” She ended her letter with a note about what this new, expanding outfit would be called: “Finally, our group out here settled on Federalist Society as a name, which I suppose makes up in euphony what it lacks in accuracy. If you have any brilliant ideas for a better name, however, that would be splendid.” Liberman thanked Bork again for his assistance and support. “I think this will be a lot of fun,” she concluded, “particularly watching the reaction of Yale, which will think it has created a Frankenstein monster.”
With that, Liberman enclosed for Bork their finished proposal for the symposium. “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society,” the statement of purpose said. “While some members of the legal community have dissented from these views, no comprehensive conservative critique or agenda has been formulated in this field. This conference will furnish an occasion for such a response to begin to be articulated.”
A one-paragraph, 103-word brief about the upcoming conference ran in National Review. “Anyone interested (most especially including law students) should write The Federalist Society,” it said, giving an address in New Haven.
What started to arrive from law students on dozens of other campuses were not only notes expressing interest in attending. The symposium hadn’t even taken place, but they wanted to know how to start chapters of their own.
***
Using Room 127, Yale Law’s largest classroom, but not the more spacious auditorium, “which the administration has commandeered,” Liberman had written to Bork, the venue made the group feel bigger than it actually was. It was in this sense a fitting setting, helping to concentrate the energy of a very rarefied call to arms.
“It is an intellectual debate,” Bork said in his talk.
And at that point, it was one they were losing. “Conservatives have simply been outgunned at the federal level for half a century,” Scalia said.
“When liberals are in power,” he added, “they do not shrink from using the federal structure of what they consider to be sound governmental goals.”
The solution, according to Blackwell, the veteran organizer of young conservatives? “Study how to win,” he told the symposium audience.
In his presentation that weekend, Blackwell pointed to his own political training as a foot soldier for landslide presidential loser Barry Goldwater in 1964. “Conservatives,” he told those gathered, “had the belief that being right, in the sense of being correct, was sufficient to prevail—that victory would naturally fall into our deserving hands like a ripe fruit off of a tree. We believed in the Sir Galahad theory: ‘I shall win because my heart is pure.’ But that is not the way the real world works.”
He made his point plain. The path to victory ran through the law. Through the judiciary.
He ticked off a to-do list: “How to get the right people into the study of law. How to get into the right law school. How to succeed as a conservative in law school. Law student participation in politics and government. How to get better people on law faculties. How to get a good clerking job. How to become a judge. How to make sure the right people get to be judges.”
It energized the people who attended the Federalist Society’s first symposium—Winter called it “the most extraordinary gathering” he had seen in his almost 20 years at Yale—and when they left on the afternoon of Sunday, April 25, 1982, they could see the future.
“The fact that all these people were getting together seemed to inspire people not to just walk away from that saying, ‘That was a great experience’—but to walk away from it thinking, ‘We need to keep doing things like this. We need to have more of these. We need to do this on different campuses. We need to come together and see what happens,’” Olson told me. There was, he said, “intellectual fire burning.”
“I was gratified,” added Blackwell. “I was optimistic.”
It was justified. The event had elicited coverage from the Associated Press and the New York Times—both outlets focused primarily on Bork’s comments—and the organizers hastened to send out thank you notes. “Your participation,” Liberman and Calabresi wrote to Bork, “was without doubt crucial to its being such a successful weekend.” They were clear, too, about the scope of their intentions.
Five months after the heady weekend at Yale, it was official: The Federalist Society, technically the Federalist Society for Law & Public Policy Studies, was a national, nonprofit corporation. Charles Bork, Robert Bork’s son, drew its logo, a silhouette of James Madison—“supposedly giving Madison a ‘nose job,’ since Madison’s actual profile was deemed ‘too ugly to be on any brochure,’” according to the journal at Harvard.
In the following five years, the society established an office in Washington and watched chapters open at 15 law schools, then 30, then 75, then more. It opened membership not just to students but also to practicing lawyers. It placed ads in National Review and had more annual symposia, hopscotching from one elite institution to the next. The following year, it was at Chicago. Then it was at Harvard, then Georgetown, then Stanford. The crowds grew.
So did the coffers. One factor that helped to make the Federalist Society something far more than simply an important student uprising was a thrilled collection of right-wing donors who had been waiting for precisely this sort of organization. Backed by the IEA, the Scaife Foundation, the Olin Foundation, the Bradley Foundation and the Deer Creek Foundation, to go with membership dues, the society’s budget vaulted past $1 million.
Critically, too, more and more members began showing up to work in Washington, the start in earnest of these insiders who felt like outsiders becoming insiders with actual power. Barely more than a couple of years after their beliefs were a source of ostracism on their campuses, they now wielded adherence to Federalist Society principles as a qualifying credential. Shot-callers in the Reagan administration saw it as a sort of stamp of approval. As counselor to the president, Edwin Meese stocked the administration with young Federalists—including Calabresi, Liberman and McIntosh, all of whom worked as assistant attorneys general. They were ready, as Steven M. Teles phrased it in his book The Rise of the Conservative Legal Movement, for “bureaucratic hand-to-hand combat.”
Olson, well on his way to being President George W. Bush’s solicitor general, one of Time’s 100 most influential people and an attorney who has argued more than 60 cases before the Supreme Court, welcomed the lot of them by having cookouts at his house in northern Virginia, taking a page from the first symposium and mixing students and interns with prominent judges, clerks, attorneys and public officials—the energy of that weekend in New Haven refracting in new ways and growing exponentially. “Over the years,” he said, “I’ve gone all sorts of places, and people come up to me and say, ‘I was in your backyard … ’”
“We thought we had planted a wildflower in the weeds of academic liberalism,” Scalia said. “Instead it was an oak.”
The society’s run of success was not uninterrupted. In 1987, Bork’s Supreme Court nomination was scuttled by a liberal-led Senate campaign that used Bork’s own words on issues such as Roe v. Wade—issues he had spoken about at the symposium. It angered and motivated members of the Federalist Society, convincing them they needed to redouble their efforts. “It was a galvanizing defeat,” Hollis-Brusky told me, demonstrating to some of them that they had tried to come too far, too fast. It also reinforced the notion that ideological purity wasn’t the only ingredient to transforming the judiciary. Raw politics mattered as well. And nearly two decades later, the Federalists would cement their power by keeping someone off the court. In 2005, they agitated for the withdrawal of George W. Bush’s nominee Harriet Miers, who had no Federalist Society ties (and a conspicuously scant résumé), leading to the nomination of Samuel Alito, who did. The episode affirmed the way in which the society’s influence had grown. Alito joined fellow Federalist Society contributors Scalia, Clarence Thomas and Chief Justice John Roberts.
Going on a quarter-century after its initial symposium, the organization had markedly and undeniably changed the nature of the judiciary. It earned begrudging plaudits for its effectiveness from unlikely sources. “They deliberately set out to do so,” Hillary Clinton, then the junior senator from New York, told Riehl, the UNC doctoral student, in 2006. “I think you have to respect that.”
“Beyond our wildest dreams,” Calabresi said in 2007 at the society’s 25th-anniversary gala.
“We thought we had planted a wildflower in the weeds of academic liberalism,” Scalia told the crowd of 1,800 members at Washington’s Union Station. “Instead it was an oak.”
***
By 2016, the sheer power of the Federalist Society was undeniable. Ironically, though, it was all the more brightly defined by the demise of one of its biggest and earliest boosters. The death of Scalia on February 13, 2016, put control of the Supreme Court squarely in the balance of the presidential election. Every candidate, both Republican and Democratic, understood that immediately—but Trump was the one who best used it to his advantage. He needed to. Nobody in the GOP field had to curry conservative favor more than Trump, a longtime registered Democrat with a record of supporting abortion rights. And he went to work at that.
“The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY!” he tweeted the day Scalia died.
Four days later, during a rally in Walterboro, South Carolina, Trump was customarily unsubtle. “We lost a great Supreme Court justice,” he said, “and nobody thought this was going to be part of the equation, and all of a sudden, if somebody gets in the wrong person … ”
But the people who knew the “right” people? The Federalist Society. In the spring of that year, as Trump zeroed in on the Republican nomination at the expense of society stalwart Ted Cruz, he had his attorney Don McGahn call executive vice president Leonard Leo to set up a meeting at Trump Tower. They would end up meeting in March at the Washington law offices of Jones Day. It turned out that Trump wanted Leo to make a list of the sort of judges he would pick to put on the Supreme Court if he were elected president. He wanted, in essence, to subcontract this task to the Federalist Society, which had performed this duty for previous Republican presidents but never so explicitly—a presidential candidate campaigning loudly against intellectual elites turning unabashedly to a group hatched in that exact environment.
In May, with Leo’s advice, Trump made public a list of 11 judges. In September, the list grew to 21. No presidential candidate had ever done this. “I thought it was a brilliant stroke,” Leo would tellNational Review. Trump spent the rest of the campaign making sure everybody knew. “All picked by the Federalist Society,” he said in June. “The gold standard,” he said in July.
For a would-be president who needed to assuage concern about his conservative credentials, this is what did it. And he has delivered, with the confirmation of Neil Gorsuch and now the nomination of Kavanaugh.
It is a strange yet somehow oddly perfect match—Trump, impetuous and transactional, and the Federalist Society, intellectual and methodical.
Looking back on that weekend in New Haven, and considering what the group has become, the people who were there talk with some mixture of surprise, satisfaction and awe at where this led—literally handing a potential president, a New York playboy and showboat, a onetime casino tycoon, a roster of acceptable judges.
“Spectacular,” Blackwell said of the growth and influence of the Federalist Society.
“Isn’t it?” Fried added with a laugh.
“I remember Leonard Leo when he was just this little kid out of Cornell Law School,” Graglia told me. “Nice little kid, nice little guy—I didn’t expect he’d become America’s judge-picker.”
No one did. Who could have? In early 1982, after all, as Calabresi, Liberman and McIntosh were consulting with Scalia, Winter and Bork about “A Symposium on Federalism: Legal and Political Ramifications,” Trump was obtaining approvals in New Jersey for his first casino in Atlantic City, talking about buying the New York Daily News and working toward the completion of the construction of Trump Tower—its “topping-off” ceremony that summer drawing Mayor Ed Koch and Governor Hugh Carey, Democrats who called the structure on Fifth Avenue “first-rate” and lauded donor-developer Trump for his “ingenuity and determination.” Today, Calabresi is a law professor at Northwestern. Liberman (now Liberman Otis) is a senior vice president for the Federalist Society. McIntosh is the president of the Club for Growth. And Trump is president of the United States. He already has put one justice on the Supreme Court, and he is about to make it two—it could end up being four. That would make seven Supreme Court justices with Federalist Society ties.
It is a strange yet somehow oddly perfect match—Trump, impetuous and transactional, and the Federalist Society, intellectual and methodical. Trump is president for a long list of reasons, of course, but near the top of that list is the imprimatur the Federalist Society granted him. He almost certainly couldn’t have gotten what he wanted without the Federalists. And they almost certainly couldn’t have gotten what they wanted without him. It’s an open question whether conservative voices have achieved their yearned-for parity on law school campuses. Trump doesn’t appear to share the Federalists’ beliefs about small government or states’ rights or academic rigor, and his time as president will end, at some point, one way or another. But his influence unquestionably will outlast his tenure. It will go on for decades. On the scorecard that matters maybe most of all—who sits in the most important seats in the nation’s most important courts—the architects of the Federalist Society have attained a level of influence on the courts they never could have imagined, in a way they never could have envisioned. Trump is changing the country. He has already changed it, because of them.
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