Voices in the Wilderness
By Malaika K. Tapper, Crimson Staff WriterOn Feb. 9, 2021, the first day of former President Donald J. Trump’s second impeachment trial, Ted Cruz (R-Texas) joined 43 other Republican senators in declaring the proceedings unconstitutional. His vote ran counter to the legal opinion of many leaders in the Federalist Society — the massively influential, behind-the-scenes conservative legal network with roots at Harvard that helped Cruz rise to power.
Steven Calabresi, one of the Society’s co-founders, even signed a bipartisan letter affirming the constitutionality of Trump’s second impeachment.
This was among the first visible fissures in an organization that reached its peak of power during the Trump administration. During his presidency, Trump appointed three judges to the Supreme Court and 54 to the federal Courts of Appeals. All but eight of them have close ties to the Federalist Society, almost double of those appointed under President George W. Bush.
Another signatory of the letter, Charles Fried — the faculty advisor to the Harvard Federalist Society — attributes this rise to a “devil’s bargain” in which the legal network traded its intellectual honesty for influence.
But other critics of the organization say this is closer to a natural alliance: that the Federalist Society has never been intellectually consistent, and that the legal theories it advocates have all along been cover for the naked pursuit of partisan policy goals.
Regardless, the Federalist Society’s rise from little more than an alternative conservative journal started by students who felt picked on at Harvard Law in the 1970s — the same journal with which Ted Cruz got his start — has been meteoric.
In the four decades since its founding, the Federalist Society’s network has radically altered the shape of the American legal system. Beyond placing judges in the nation’s highest courts and influencing presidential administrations, it has remade the very way judges write opinions, pushing once-fringe interpretive theories of originalism and textualism into the foreground of American law and offering judges the language to justify previously unthinkable decisions, which favor conservative and libertarian political aims. Harvard Law School was the cradle for and has been, in many ways, a driving force behind the organization’s success.
A month before Trump’s second trial, when Cruz objected to the certification of the presidential election just hours after the insurrection those objections had helped incite, Harvard Law School professor Duncan Kennedy thought back to the grievances he believed gave rise to the Federalist Society.
“The rage of some Harvard law students [in the 1980s] at being bullied and ostracized translates directly into the vote of Ted Cruz in the Senate last week,” he said.
Indeed, Cruz’s frustration from those days when conservatives were laughed out of classrooms has followed him past the gates of Harvard Law. It may have been a strain of that same frustration which led him to falsely claim, before an audience of conservative activists at a 2010 Americans for Prosperity luncheon in Austin, Texas, “There were fewer declared Republicans in the faculty [at Harvard Law School] when we were there than Communists!”
The senator’s false conviction, according to his press office, traces back to a struggle at Harvard in the 1980s over Critical Legal Studies: a left-wing academic movement so threatening to the conservative establishment that the backlash it faced helped fuel the Federalist Society’s staggering ascent.
Cruz continued, “There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.”
“Beirut on the Charles”
In 1985, within the mahogany-paneled walls of the Harvard Club of New York City, the Federalist Society held a debate that helped turn the tides of power in their favor. For if the battle that had given rise to the conservative legal movement centered on the future of legal education, then Harvard was the first theater of the war.
Alumni across New York had received provocative letters inviting them to “learn more about the intellectual crisis confronting Harvard Law School and legal education in general.” The “crisis” in question was the rise of Critical Legal Studies (CLS) — which, as Duncan Kennedy explained to the audience, asked students to examine how “the system by which the rich and powerful, white and male, stay rich and powerful, generation after generation, has a very strong legal component.”
The invitation letter, sent by the Harvard Federalist Society (then still called the Harvard Society for Law and Public Policy) and the national Federalist Society, was so derisive of CLS that one left-wing speaker withdrew from the event, and panelists who did participate condemned the letter in their opening remarks.
The panel featured four Harvard professors. Paul M. Bator and Robert C. Clark spoke for the conservative position, while Kennedy represented CLS, and Abram Chayes, as he referred to himself, “the muddy middle.”
At stake was the political right’s ability to gain control of the American law school, and thus over the future of American lawyers and the law. The rise of CLS also seemed to reinforce the narrative of institutional bias against conservatives, a resentment parallel to that which, 35 years later, animated the belief that the 2020 election had been stolen.
As Clark told the audience in New York, Harvard Law School’s atmosphere appeared to be: “Let a thousand flowers bloom, so long as they’re all leaning sharply to the left.”
Since its emergence at Harvard in the early 1970s, the CLS movement had, by 1985, turned the school into the stage for what Clark deemed at the New York event to be a “prolonged, intense, bitter conflict among different groups of faculty members.” The rivalry came as close to a civil war as faculty lounge bickering can get — the Law School was sometimes referred to as “Beirut on the Charles.”
CLS existed at other schools, but as Bator told that room of over 250 alumni in 1985, the movement’s “strongest presence is at Harvard Law School, where its founding trinity teach.”
Though the battle began at Harvard, the Federalist Society’s campus triumphs came to be nearly synonymous with those of the nationwide conservative movement. During his keynote address at the 1988 Federalist Society National Lawyers Convention, then-President Ronald Reagan reveled in the victories he shared with the network: how far they had come in “changing the terms of national debate.”
“Nowhere is that change more evident than in the rise of the Federalist Society on the campuses of America’s law schools,” he continued. “To think of it, in schools where, just a few years ago, the Critical Legal Studies movement stood virtually unchallenged like some misplaced monster of prehistoric radicalism.”
One of the first seeds of the Federalist Society had grown at Harvard eight years before the panel, in 1977, when two students named E. Spencer Abraham and Steven J. Eberhard, feeling frustrated by the domination of liberal and left ideas on campus, started a conservative and libertarian law journal.
They called it “the Harvard Journal of Law and Public Policy” and declared its mission to be the countering of the liberal orthodoxy on campus. Lawrence J. Siskind ’74, one of the Harvard JLPP’s first editors, recalls that he felt the problem went deeper than a mere lack of an outlet for conservative ideas: “We felt that there was definite discrimination.”
The preface to the first issue of the JLPP, published in 1977, concludes with a telling Latin phrase: “Vox clamantis in deserto,” a biblical reference which translates to “the voice of one crying in the wilderness,” or “a wise person whose counsel or warnings are ignored.”
This journal went on to become the official publication of the national Federalist Society and the top journal of conservative legal thought; it is, to this day, among the five most circulated legal journals in the country, according to its website. The Harvard JLPP published the proceedings of the 1982 conference at Yale that formally founded the Federalist Society, distributing its ideas to a wider audience at a time before the internet. The Journal has continued this practice for every annual symposium since.
In bringing the front of the fight beyond the gates of Harvard Yard and to New York City in 1985, the Harvard Federalist Society mobilized the might of alumni pressure, warning of a communist takeover of their school.
The conservative professors on the panel cast CLS as an existential threat. At risk for the crowd was the prestige of their alma mater, which the professors warned could descend into “mediocrity” should Critical Legal Studies continue to grow unchecked.
Bator and Clark equated the silencing of conservatives with the decline of the school: “The Harvard Law School is the only educational institution I know where it is considered a symptom of right-wing extremism to be in favor of rigorous standards of scholarly excellence,” Bator lamented. Clark claimed that hiring had been paralyzed; no longer was Harvard the desired perch of the nation’s top legal scholars. Professors at other schools, he said, had confided in him that they did not want to enter the trenches of such a bitter conflict.
The Harvard Society of Law and Public Policy, which put on the 1985 panel and later renamed itself the Harvard Federalist Society, was first formed as a nonprofit shell for the Harvard JLPP in 1977. And the group would send a transcript of the panel to every HLS alumnus in the NYC area, to far-reaching effect.
When the last question had been asked, Duncan Kennedy stepped out of the Harvard Club into the summer air and walked toward Fifth Avenue, looking for a taxi to the airport. But the events that the panel set in motion had just begun.
From these early stirrings, the Society rose to hold such sway that its credentials sometimes appear all but the prerequisite for obtaining a judgeship on the federal bench.
“Vox Clamantis in Deserto”
October 30, 2019 was perhaps the biggest day in Lawrence J.C. VanDyke’s career — the day of his Senate confirmation hearing for the seat on the Ninth Circuit Court of Appeals to which Donald Trump had nominated him. But things weren’t going exactly as planned. The night before, the American Bar Association had sent out a withering letter concerning his qualifications for the job. The group had interviewed 43 lawyers, 16 judges, and one other person who had worked with VanDyke, and come to the conclusion that he was, in the end, “Not Qualified.”
When VanDyke was a student at Harvard Law School and an editor of the Harvard Journal of Law and Public Policy, he penned an op-ed in the Harvard Law Record expressing his worries about same-sex marriage. He wrote in the 2004 article that there is “ample reason for concern that same-sex marriage will hurt families, and consequentially children and society,” and insisted that “it isn’t ‘absurd’ to be concerned about threats to religious freedom given the chimera of ‘tolerance’ affiliated with homosexual rights.”
It perhaps should not have come as a surprise, then, when Senator Joshua D. Hawley (R-Mo.) — a leading voice behind calls to overturn the 2020 presidential election — gently asked VanDyke, “The [ABA] letter also says that you would not commit to being fair to litigants before you, notably, members of the LGBTQ community. Can you speak to that? Did you say that you wouldn’t be fair to members of the LGBT community?”
But VanDyke appeared to feel as though he were an innocent man, tired of constantly being accused of this, the same old crime.
“Senator, that was the part of the letter…”
He could not go on; the question had hit a nerve. Tears filled VanDyke’s eyes and his face turned a deep red. He began to cry.
Lawyer and journalist Dahlia Lithwick co-wrote in Slate following the hearing, “Despite his years of anti-LGBTQ writings and advocacy, VanDyke was the one who felt persecuted.”
The ABA letter stated that interviewees had described VanDyke as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.”
Lithwick continued, “What, exactly, does VanDyke have to cry about? That someone hurt his feelings? That after a career spent maligning and excluding gay Americans from everyday civic life, he feels entitled to glide onto an Article III court without answering for any of it?”
When confirmed, VanDyke became the 50th judge to reach the federal Courts of Appeals, the last stop for a case before the Supreme Court, during the Trump administration; the president would name four more before the end of his term. Having appointed 30 percent of the judges across the circuits, Trump can claim to have effectively reshaped the American judiciary. Or rather, the Federalist Society can.
Forty years after its founding, the Society claims some 70,000 acolytes. However, those who study it, including some leaders of the group themselves, have explained that while many people do pay membership dues, to limit one’s sense of the Federalist Society to its card-carrying members would be to misunderstand its shape. These scholars propose, instead, that we think of it as a network, or as a movement, rather than a static organization.
While this movement’s power has swollen under Trump, its momentum has been building since the controversy that roiled Harvard Law School in the 1970s and 1980s, and in particular, in the aftermath of the Harvard Club panel of May, 1985.
In June of that year, Harvard Law School alumni across the greater New York City area opened their mailboxes to another letter from the Federalist Society. This time, what they found was not an invitation, but a transcript.
In a letter addressed “Dear Harvard Law School Alumnus,” David M. Bader ’81, then-president of the Harvard Federalist Society, and Eugene B. Meyer ’64, who has held the top position in the national organization since his appointment in 1983, announced that they had “decided to send the attached transcript to all the Harvard Law School alumni in the greater New York City area.” Even if they had not attended the panel themselves, they would be able to experience the event as if firsthand.
Duncan Kennedy remembers a later conversation with one of the conservative architects of the 1985 panel. It was then that Kennedy realized how much the event had helped turn the tides in favor of the Federalist Society at Harvard and beyond. The man told him, “Well boy, did you screw up!”
Kennedy’s comments, flattened into printed form, seemed to confirm all the stereotypes about a leftist takeover of the symbolic heart of meritocracy that anyone could harbor. The event had turned the private battle of campus conservatives into a national cause for concern.
The ensuing alumni pressure on HLS was so intense that Harvard had to establish a special temporary communications office. Clark’s appointment to the deanship in 1989 — a surprise which, given his championship of the Federalist Society and outspoken stance against CLS, was seen as a victory for conservatism at Harvard — can arguably be traced in part back to the event. So can the founding of the Olin Center for Law, Economics, and Business at Harvard, endowed by conservative philanthropist John M. Olin, whose foundation hoped to realize an explicit political agenda at HLS with its donation.
The Harvard chapter and JLPP have not only helped build an impressive conservative legal network and roster of judges. The journal has been the vanguard in the Federalist Society’s long-term project of reshaping legal thought, in particular in helping to legitimize and widen the discourse on originalism and textualism, conservative modes of judicial interpretation once considered fringe. Before the Harvard Law Review would publish originalist scholarship, the Harvard JLPP would.
"In the early stages of the Federalist Society, having a publication that could take the proceedings of the conferences and put them into a format where they could be read by many people who couldn't attend helped to get us, to get the Federalist Society, and its activities, better known,” says Spencer Abraham, the Harvard JLPP’s co-founder.
John O. McGinnis ’79, who was among the founding members of the Harvard JLPP and is now a law professor at Northwestern, says there is no doubt “that the Federalist Society has had far more effect than any law school, or law schools collectively, on the nation.”
He explains that originalism was probably not “discussed at all in my Harvard Law School class, and now it’s not only an important theory on the court, I would say, but four of the justices are probably originalists in one way or the other, and two others have a lot of sympathy with originalism.”
Originalism says judges should interpret laws, and in particular the Constitution, to have the meaning they would have had at the time of writing. Meanwhile textualism, at least on paper, holds that laws should be interpreted only according to the actual words in the text of the statute, and nothing more.
Both originalism and textualism have been subjects of widespread critique on from the right and left since their inception. Critics say they are a way of working backward from policy goals, such as dismantling the Affordable Care Act, rather than a bona fide philosophy of jurisprudence. “I think textualism and originalism are a fake. It’s a propaganda tool; it’s a slogan,” says Fried, who served as solicitor general under Ronald Reagan.
Asked how he reconciles the support he’s provided the Federalist Society — which is largely responsible for the rise of originalism — with the fact that he finds the legal theory to be “propaganda,” Fried replied, “debate and discussion.”
Abraham described a positive-feedback loop between the two organizations: The Harvard JLPP helped the Federalist Society reach a broader audience and bring conservative legal ideas into the mainstream; meanwhile, as the Federalist Society has grown, so, too, has the Journal’s readership, and thus its influence over legal thought.
As Kennedy remembers the Federalist Society event planner confiding in him later, “‘That [panel] was the turning point for the Federalist Society — after the debate, our membership at Harvard went up. But it wasn't just at Harvard. All over the country, we got new members as a result of the debate. What were you thinking?’”
“A Devil’s Bargain”
When Ted Cruz entered Harvard Law School, in 1992, the Federalist Society was ascendant and CLS mostly on the other side of its prime. Nonetheless, speaking at the Americans for Prosperity luncheon in Austin nearly two decades later, he seem to harbor bitter feelings from a conflict that had all but subsided by the time he arrived.
Cruz had the power he had been looking for: A U.S. senator, he was presenting at an elite conservative summit sponsored by the Koch brothers, the oil refinery magnates known for bankrolling many of the nation’s most influential right-wing and libertarian enterprises, including the Federalist Society.
But he was still sounding the alarm over a leftist insurrection, and although that claim was false, Cruz’s rage was real — a decade before his calls to overturn the 2020 presidential election results and reinstate a president who gave the conservative legal movement unprecedented power. Cruz’s press office did not respond to a request for comment.
The Trump administration marked another inflection point in the Federalist Society’s rise. The group held enormous behind-the-scenes sway in crafting Trump’s list of nominees, its executive vice-president Leonard Leo serving as advisor to Trump’s administration.
But as Fried, the current advisor to the Harvard Federalist Society, explains, to some this power came at cost. The rupture which has become clear within the network since the Jan. 6 insurrection — between support for Trump through his senate trial and a feeling that such support goes beyond the realm of conscionability — may have been bubbling below the surface before then, even as their power reached new heights.
“Well, [the Federalist Society] seems to have been very influential in the Trump administration, because there was a kind of devil’s bargain,” Fried says. “They supported Trump if Trump allowed them to pick the judges, who were overwhelmingly members of the Federalist Society."
The national Federalist Society did not respond to multiple emails with questions about their work with the Trump administration.
The appeals court judges appointed by Trump bring more open support for conservative causes, and are whiter and younger, than the judges appointed by the last three presidents. They are also more likely to have gone to an elite law school.
Sixty-nine percent of Trump’s federal appeals court judges attended a top-ten law school, compared to 51 percent under Obama and 44 percent under Bush. Harvard Law School, long central to the Federalist Society’s ascent, is no exception. Its alumni now hold an inordinate share of seats on the nation’s appeals courts. Because federal judges have lifetime tenure, that influence will persist long after the end of the Trump era.
Eleven of the appellate court judges appointed by Trump — more than 20 percent — attended Harvard Law School. All 11 of those have strong ties to the Federalist Society, with at least nine beginning their paths to the federal bench at the Harvard Federalist Society or the Harvard Journal of Law and Public Policy.
Fried insists that national organization’s support of Trump did not apply to Federalist Society members at Harvard, that no Faustian deals were made in Cambridge. “I don’t think that is at all the disposition of our students at Harvard,” he says. “They are, as I say, courteous, generous, good, people — friendly, and they have none of the repelling qualities members of the Trump administration demonstrated.”
The Harvard Federalist Society also did not respond to multiple requests for comment.
VanDyke was among this group, having graduated from HLS in 2005; his confirmation in December 2019, despite the ABA’s rating of “Not Qualified,” was one of many boons to the Harvard Federalist Society under the Trump administration.
“They Are to Be Forgiven”
In March 2019, crowds of HLS alumni squeezed into the dimly lit rooms of Russell House Tavern as Donald F. McGahn II, who helped oversee Trump’s judicial selections and spearheaded his deregulation agenda, gave the opening address at the Federalist Society’s annual Harvard Alumni Symposium. Other festivities, beginning the following morning, included an “Abigail Adams Breakfast” and a “Lawyering in the Trump Administration” panel.
After lunch, alumni headed to the first floor of Pound Hall for a “Judicial Nominations Panel.”
Three judges spoke on the panel — Andrew S. Oldham, Jonathan A. Kobes, and John K. Bush; each graduated from HLS in ’05, ’00, and ’89, respectively. All sit on the U.S. Court of Appeals, and all had been appointed in the past three years, under the Trump administration.
Just four short years before, reunion organizers would have had to scour for panelists who fit the bill: federal appeals court judge, HLS alumnus, Federalist Society devotee since law school. But this time, options abounded, a testament to just how much Trump’s presidency meant to the Harvard Federalist Society network.
Before they were judges, these men were clerks — the Federalist Society’s pipeline begins in law schools and runs quietly below the careers of its members, from cocktail hours to the Supreme Court. The past three HLS graduates to obtain clerkships with Supreme Court Justice Clarence Thomas, for instance, held editorial positions on the Harvard JLPP while in law school.
As Charles Fried says of his Harvard student advisees, “There’s no doubt that if you put ‘Federalist Society’ on your resume, particularly ‘officers’ and so on, that will help getting placed with some judges. Some judges will respond to that.”
Of the 11 Harvard Law School alumni that Trump nominated to the appeals court, nine joined the Federalist Society or served as editors of the Harvard JLPP while in law school. Another, Kevin Newsom, joined the Society in 1999, two years after graduating. Thomas Kirsch, the only other one of the Harvard Trump judges who did not become tied to the Federalist Society in law school, lists his official membership as lasting from 2006 to 2007, seven years after he graduated.
The Federalist Society is not the sort of college club you shed like an old coat once you’ve outgrown it and moved on to bigger and better things. It is, rather, the fur cowl that helps you fit in at the party and gets you invited to the next one, and then, with a little bit of effort, you’re the party’s host and the guest will be arriving soon.
Oldham, among the 2019 reunion speakers, took one of many paths along the Harvard Federalist Society pipeline before becoming a part of it himself.
While a student at Harvard Law, Oldham was an editor on the JLPP. After graduation, he obtained a prestigious clerkship on the D.C. Circuit Court for Judge David B. Sentelle. That served as a stepping stone for him to advance to a clerkship on the Supreme Court, with Justice Samuel A. Alito Jr., who has close ties to the Federalist Society. He then served as general counsel to the governor of Texas. Finally, Oldham became a judge himself, nominated by Donald Trump on February 15, 2018.
Soon after Oldham was confirmed to the Fifth Circuit Court of Appeals, he accepted an application for a clerkship from Stanford Law student Trevor Ezell. Ezell was co-president of the Stanford chapter of the Federalist Society. After finishing his clerkship with Oldham, Ezell went on to be accepted for a clerkship with Supreme Court Justice Neil Gorsuch, who was nominated by Donald Trump in 2017 and has been a member of the Federalist Society since 1989, when he was a student at Harvard Law School.
Meanwhile, Alito’s roster of law clerks illustrates the clerkship and judgeship network that Harvard Federalist Society members can access.
Fifteen of 68, or 22 percent, of Alito’s clerks are graduates of Harvard Law School. Eleven of those 15 have Federalist Society affiliations.
Three of the Alito clerks ascended from previous clerkships for Judge Diarmuid F. O’Scannlain, who was appointed to the Ninth Circuit of Appeals by Reagan. O’Scannlain went to Harvard Law School and has deep connections to the Federalist Society, including speaking at more than 18 network events since 2003. One of those three clerks, Jose J. Alicea, graduated from Harvard Law School in 2013. While he was there, he served as president of the Harvard chapter of the Federalist Society.
And the system is circular: as the Federalist Society uses its growing influence to appoint more loyal judges, law students have more justices they can count among the ‘some’ who will ‘respond’ to a Federalist Society credential, as Fried puts it. Some of those students are on track to become judges themselves, thus expanding the spiral.
An email sent out at the start of the spring 2021 semester by the Harvard Federalist Society provides insight into the pipeline’s twists and turns, with students who have benefited from the infrastructure becoming a part of it themselves. The email asks those alumni who have had a clerkship in the past 12 months to contribute to “The Clerkship Guide,” which “collects advice from Federalists over the years and is distributed in hard copy towards the end of the academic year.”
“Please consider passing on any tips you learned from your application process to help future Federalists,” the email reads. “Entries generally describe the applicant’s general strategy, the timeline on which they applied/interviewed, what their application looked like, how the interviews were conducted, and any general advice or advice specific to your judge.”
The Harvard chapter has, in the past, tried to disentangle itself from the tethers cinching its national organization to Trump. Annika M. Boone, then-president of the Harvard Federalist Society, told the Crimson in 2018, “It’s not very fair. We certainly don’t have anything to do with the Trump administration.”
But the ‘bargain’ the national Federalist Society made with Trump is a done deal. When considering their careers, Fried explains, students must be pragmatic. “They take account of what that world is,” he says. “And if their disposition is of a conservative sort, that’s going to mean you go with where the bodies are.”
Trump’s time in office has concluded, but, as Fried suggests, for conservative students who want to rise high in the legal world, his legacy may be impossible to avoid.
“Students are much more alive to the existing situation than are faculty because we’re there, we have tenure,” Fried explains. “They’ve got to go into this world. So, they are to be forgiven.”
— Magazine staff writer Malaika K. Tapper can be reached at malaika.tapper@thecrimson.com. Follow her on Twitter @malaika_tapper.