The conservative legal movement and its libertarian critics
Damon Root describes the conservative legal movement as a product of the liberal court victories of the 1950s and 1960s under the Warren and Burger Courts, and as modeled on the civil rights movement’s success through legal means. That movement, he says, grew up over the past 40 years, is extremely influential, controls the Supreme Court, and is influential within the right and the Republican Party. Bob Zadek calls the Federalist Society perhaps the point organization in all of this, and Root agrees that it is a key organization there. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Within that broader movement, Root describes a libertarian insurgency that disagrees with conservatives on a number of issues; the real fault line, he says, is over the role of the courts and whether courts should be deferential to the elected branches. He identifies privacy—sexual privacy, birth control, abortion—as a key conservative issue because the right to privacy is unenumerated. He states that in 1965 the Supreme Court struck down a Connecticut law banning the sale of birth control to married couples, and that a few years later the Court said the right to privacy included a right to abortion. Conservatives, in his account, regard those opinions as untethered from the text of the Constitution. Zadek says Justice Scalia was pretty much true to that line of thought, and Root says Scalia held to it very consistently. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Root says the libertarian legal movement disagrees, holding that the Constitution contains a right to privacy and that the state should not be able to prevent married couples from obtaining birth control devices for use in the privacy of their own home; he calls this a classic example of government overreach. He names Scalia, Robert Bork and John Roberts as applying a deferential philosophy in economic regulation cases as well, treating economic rights and unenumerated rights in what he calls a second-class way. He reports that Scalia debated libertarian law professors over whether the Constitution requires courts to actively protect economic liberty, and that Scalia said it does not. Root attributes to Scalia a concern that a prevalent libertarian view would encourage liberal judges to be more aggressive. He reports that Bork felt the same way and that he thinks Roberts feels that way as well. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
The Commerce Clause and the healthcare litigation
Root describes the 2012 healthcare case as turning on whether Congress had authority under the Commerce Clause to impose the individual mandate. He says the debate over how broad the Commerce Clause is has been happening since the New Deal, and names Randy Barnett, a law professor at Georgetown, as the architect of that legal challenge and a long-time advocate of a narrow reading of the clause. Root states that in 2005 Barnett argued a medical marijuana case at the Supreme Court and lost, and that California had legalized medical marijuana. Zadek calls that a terrible decision and names it the Raich case. Root says Barnett lost because the Court said the Commerce Clause was broad enough, and that Scalia and Kennedy voted against him in favor of a broad Commerce Clause power. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Root says that seven years later Barnett’s arguments had become the default conservative position, that the entire conservative movement lined up against Obamacare in that case, and that Scalia changed his views while Roberts held to the older conservative view. Root says it is fair to call it a war because libertarians have been waging an aggressive campaign of ideas from a small position within the broader conservative legal movement; he lists law review articles, speeches, debates and bringing court cases as the means. He cites Michael Greve’s review in the Wall Street Journal as conceding that libertarians have gained ground, and says the libertarian view is much more dominant on the right than it was 30 years ago. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Zadek says the libertarian movement is intellectually alive, with brilliant writing and aggressive active scholarship, and that libertarians have a seat at the table and often lead the debate; when you frame the debate, he says, you in effect have won. Root agrees, saying the traditional conservative view of deference has fallen out of favor largely on the right, and that more conservatives now say the court should be aggressive and strike down laws. Zadek lists issues he says are libertarian and now discussed in America: gay marriage, gun control, legalization or decriminalization of marijuana and other controlled substances, and Rand Paul’s efforts on punishment for low-level drug offenses. He says the warriors against Obamacare are for the most part libertarian or libertarian-leaning attorneys and that another Supreme Court case is again driven by libertarian law firms. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Root names the King v. Burwell case and says people at the Cato Institute—law professor Jonathan Adler, who writes for the Washington Post, and Michael Cannon—were huge in creating that legal challenge and identifying the problem with the law. He says Congress passed a law nobody in Congress read in full, but those men read it and found the problems. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Across episodes: the Society as a point of reference
The Federalist Society surfaces in four episodes without a single episode devoted to it. Damon Root and Bob Zadek treat it in 2014 as the point organization of the conservative legal movement and the institutional home of a judicial strategy that Zadek traces to the 1970s; Brian Walsh in 2015 lists it among a coalition including the National Association of Criminal Defense Lawyers, the Heritage Foundation, Cato Institute and Institute for Justice; Bob Zadek in 2016 tells Gail Heriot she spoke like a true participant in the activities of the Federalist Society; and in 2019 Zadek notes that John McGinnis writes for the Society. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014) “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015) Gail Heriot on the Significance of Justice Scalia’s Passing (2016) Here Comes the Storm (2019) The later excerpts do not develop the account Root gives; the excerpts show no development of the topic between the earlier and later treatments, only incidental mentions.
The Society in a coalition against overcriminalization
In the 2015 episode on overcriminalization, Brian Walsh agrees with Zadek that there are not really lobbying organizations for people caught up in the regulatory criminal law environment, and says that fortunately there is a coalition of organizations on the left and the right: the National Association of Criminal Defense Lawyers, the Heritage Foundation, Cato Institute, Institute for Justice, and the Federalist Society as well. “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015)
Walsh describes Congress putting provisions in new legislation stating that violations of the section and of regulations and rules promulgated under it can be punished by five years in prison or whatever else, a blanket criminalization for regulations unelected bureaucrats later promulgate. He gives the example of Krister Evertson, an inventor who spent $100,000 of his family’s money on clean energy cells and who sold materials over eBay in a properly insulated container but failed to put the right sticker on the package—a sticker, Walsh says, that no federal official could show the appearance of. Walsh says Evertson was acquitted on one charge after a public defender showed a UPS agent had lied, then was prosecuted on a charge that he had abandoned his materials, which were stored in half-inch thick stainless steel drums with no leakage. Because the government did not have to prove criminal intent on that charge, Walsh says, Evertson was found guilty and spent two years in federal prison. “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015)
The Society as a model and a credential
In the 2016 episode on Justice Scalia’s passing, Gail Heriot says the reason Supreme Court confirmation processes are so contentious is that government is so big: in the framers’ time the federal government was a very small part of anybody’s life, but now so much rides on it. Zadek replies that the stakes go up tremendously, and tells Heriot she spoke like a true participant in the activities of the Federalist Society. Gail Heriot on the Significance of Justice Scalia’s Passing (2016)
In the 2022 episode with Dick Morris, Zadek says Republicans had identified the court as the branch of government most valuable to capture, and that the policy goes back to the 1970s with the Federalist Society; he suggests Democrats may have observed with envy how effective Republicans had been. Morris responds that it is more than a question of whether the court leans left or right—it is what you are using it for—and distinguishes litigating things that ought to be litigated, such as abortion, reapportionment or criminal justice, from using the courts to try to stop a former president from running again. Dick Morris on the 2022 and 2024 Elections (2022) Zadek’s remark is his own framing; Morris does not adopt the Federalist Society account.
In the 2019 episode, Zadek closes an immigration discussion with John McGinnis by noting that McGinnis can be followed on Twitter and that he writes for the Federalist Society. The Society appears there only as the venue for the guest’s writing, not as a subject of discussion. Here Comes the Storm (2019)
What the sources do not cover
The excerpts do not give the Federalist Society’s founding date, its founders, its membership, its funding, its internal structure, or the date and place of any convention or meeting. They do not describe any Federalist Society publication or event by name beyond noting that a guest writes for it, and they do not report any statement issued by the Society itself. No excerpt states the case name or holding of the 1965 birth control decision, the medical marijuana case beyond Zadek’s naming of Raich, or the outcome of King v. Burwell. Nothing in the excerpts describes the Society’s positions on immigration, elections, or judicial nominations as such.