The Federalist Society Will Soon Be Under New Management

The Federalist Society, which sits atop the many organizations that might be called the right-wing legal movement, has come to dominate both our courts and our body of legal thought. Six of nine Supreme Court justices have some affiliation with the organization, and conservative ideas such as originalism, textualism, and “history and tradition” analysis are mainstays in law school curricula and legal filings. The organization’s influence, particularly as a Republican administration makes its way into office, means that its leadership could have a significant impact on the law. Recently, longtime FedSoc President Gene Meyer announced his intention to retire, kicking off speculation about who will inherit the vast power that Meyer has helped to amass in the organization.

Under Meyer’s decades-long leadership, the Federalist Society has become a powerhouse on the right, boasting massive funding and powerful allies in all branches of government. During Donald Trump’s first term, FedSoc was almost a shadow presidency, handpicking judicial appointments for federal judgeships, as well as being hugely influential behind the scenes in terms of the Cabinet and administrative agencies. Meyer has specifically been seen as an influential player in helping to bridge the gap between institutionalist conservatives and the conservative legal movement’s more aggressive firebrands, so whoever ends up as his successor may give us an idea of the organization’s future direction—and who will inherit the organization’s future. With Trump—an unquestioning enabler of the organization’s grand designs—preparing for his second term, the new leader of the Federalist Society is destined to have a significant impact on the country.

Recent reporting suggests that there are currently five candidates in serious contention for the job. All of the candidates are white men. All have significant experience in right-wing legal fights against abortion, race-conscious college admissions, and administrative state regulations. And all of them have staked out extreme positions that are widely out of step with the majority of Americans.

Robert Alt is the president and CEO of the Buckeye Institute, a conservative think tank pushing for “free-market public policy in the states.” Alt was actually floated as a potential circuit court nominee during Trump’s first term but was ultimately not nominated. Through his work with the Buckeye Institute and his columns in the National Review, Alt has staked out right-wing positions on most of the major issues that Republicans want to advance through the courts.

Alt has written extensively about affirmative action, helping to develop some of the early arguments that led to conservatives’ successful effort to rule the practice unconstitutional in college admissions in Students for Fair Admissions v. Harvard. Alt believes that race-conscious admissions amount to a “racial entitlement” that gives an unfair advantage to marginalized groups. He has supported laws requiring racial profiling in the name of immigration enforcement. He has called criticism of John Roberts’s record on gender issues ridiculous accusations from the “feminist cabal.” He has defended Rush Limbaugh’s obvious racism while implying that racial disparities in areas like employment are a result of a lack of merit. He has called unions tyrannical and fought hard to limit their effectiveness. He supported the war in Iraq and pushed for more executive discretion in conducting warrantless wiretaps.

And yet, while Alt hits all the “right” marks on these issues for many conservatives, he is also a bit of a throwback to the Bush years and may be seen as a more moderate choice. Considering Alt’s views, this says a lot about the current state of conservative politics. But the other men in contention perhaps illuminate much more.

Michael Fragoso is chief counsel to Senator Mitch McConnell, having previously served as chief counsel for nominations for the Senate Judiciary Committee while McConnell played hardball on nominations in Trump’s first term. Fragoso is firmly committed to forced birth, having written extensively on the right’s opposition to abortion. In addition to his opposition to abortion, Fragoso has written negatively about birth control, calling emergency contraception a “stealth abortion pill.” (It is not.) He is also firmly steeped in the importance of judicial nominations and FedSoc’s strategies for advancing reactionary jurisprudence. Fragoso has not done as much public writing as candidates like Alt, but as he has been extensively involved in the conservative legal movement’s capture of the Supreme Court, it may be expected that he would take a more aggressive approach to consolidating power.

Ryan Newman is general counsel to Florida Governor Ron DeSantis. As DeSantis’s head legal adviser, Newman has been involved in efforts to amass power in the executive branch of the state government, which might have considerable appeal to a movement expecting a friendly incoming federal administration. Newman appears to have been behind DeSantis’s blatantly unconstitutional efforts to threaten TV stations into rejecting ads supporting a state constitutional amendment supporting abortion rights under threat of criminal prosecution, which led to the resignation of other lawyers in the administration. He also defended DeSantis’s firing of an elected state attorney over his “woke” politics.

In defending DeSantis’s actions, Newman has persistently denied that there are any systemic injustices contributing to inequities in the country. While defending Florida’s Stop WOKE Act, Newman stated that policies conscious of racial discrimination are themselves “rank discrimination on the basis of race and sex … that if accepted by most Americans would effectively destroy our country as we know it.” Like Fragoso, a Newman pick may indicate a more aggressive direction for FedSoc.

Paul Ray is the director of the Roe Institute at the Heritage Foundation, a right-wing think tank. The main focus of Ray’s work and writing has been railing against administrative agencies, advancing ideas like nondelegation under the cover of supposedly increasing public participation in the regulatory process. The idea is that since Congress is elected by the people, it should not delegate too much to agencies, who are under the executive branch (the head of which is an elected official—but whatever, apparently!). The problem—which anti-regulatory crusaders like Ray are fully aware of—is that Congress is not equipped to make specific determinations about things such as the proper levels of potential contaminants in water or which chemicals may be carcinogenic.

These kinds of specifics would be incredibly difficult to account for in federal legislation, and gridlock in Congress ensures that even if these kinds of laws were passed, they would be incredibly difficult to update as new knowledge comes to light and new technology comes online. The ultimate effect would be to simply eliminate and prevent regulation, which is exactly why corporate think tanks like the Heritage Foundation support the idea.

What makes Ray’s writing on administrative law so striking is his insistence that regulators are “morally illegitimate” and out of touch with the people living under agency regulations, but all of his empathy seems to be reserved for the corporations being regulated, rather than for the people who benefit from healthy food and drugs, safe workplaces, and a clean environment. While Ray is aligned with FedSoc on one of its core issues here, the Supreme Court is already doing the right’s dirty work in gutting the administrative state, so it may be a bit of a surprise to see someone so singularly focused get the job.

Dean Reuter is a senior vice president and general counsel at the Federalist Society. While he has not been as present in the public eye as organizational leaders like Gene Meyer and Leonard Leo, Reuter has been a key figure in FedSoc’s rise, and a driving force for its preferred policies and judicial candidates. Much of Reuter’s writing has criticized the supposedly out-of-control growth of the administrative state. He has a very particular view of what kind of state power is problematic, however, opposing regulatory action but supporting extensive government control and violence in the name of national security. Tellingly, the co-author of his book Liberty’s Nemesis: the Unchecked Expansion of the State was the author of the infamous torture memo supporting violent interrogations of enemy combatants, John Yoo.

Reuter was critical of efforts at combating the early effects of the Covid-19 pandemic, telling a radio show, “When you give people money, they get dependent and come back for more money.” He has also questioned campaign finance laws of the kind overturned in Citizens United v. FEC. Because of his long tenure at FedSoc and close work with Meyer, Reuter may be seen as a more conciliatory pick, and one that could take full advantage of the organization right off the bat because of his strong institutional knowledge.

Time will tell who is chosen—and what their selection says about the direction of the organization. But whoever the Federalist Society chooses as its next president, this collection of policy views and work experience should be pretty alarming to anyone who cares about bodily autonomy, public health and safety, and any moves toward a more equitable and just society. These noble goals were always going to take a hit in a Trump administration, but the Federalist Society’s ability to drill their malodorous policies more firmly into the foundations of our politics only helps to give such extreme ideas more undeserved staying power.