Monday, November 14, 2022

Federalist Society Tries to Cancel its Co-Founder

by Michael C. Dorf

In a few weeks, the Supreme Court will hear argument in Moore v. Harper, which presents the Justices with their first opportunity to give plenary consideration to the independent state legislature (ISL) theory, according to which state legislatures can make and change laws governing congressional and presidential elections, independent of their state constitutions, state courts, and in the most aggressive version of ISL, of the governor. ISL is ahistorical and a potentially grave threat to democracy. Even as many Republicans grow weary of Donald Trump--not, mind you, because he is a lying, cheating, racist, sexist, evil man, but because he is bad for their political brand--Trump and Trumpism remain a very real threat to the continued existence of American democracy. His expected announcement tomorrow night of a third presidential run underscores the threat. Should SCOTUS endorse ISL in Moore v. Harper, Trump will have a path back to power that does not depend on his winning the Electoral College as it has traditionally acted, much less winning the national popular vote.

But this is not an essay about ISL, Moore v. Harper, or Trump, at least not directly. Rather, today I want to talk a little bit about what happened after a scholar with impeccable conservative legal credentials joined a brief disputing ISL and otherwise disagreeing with the orthodoxy on issues that the Federalist Society definitely does not insist upon.

Given the stakes, Moore has inspired a substantial number of amicus briefs. One of the potentially most persuasive of them was filed last month on behalf of Yale Law Professor Akhil Amar, University of Illinois Law School Dean Vikram Amar, and Northwestern Law Professor Steven Calabresi. Building on some of the scholarly work that the Amars have previously written, it argues that ISL, as reflected in the petitioners' claims, contradicts the "Constitution’s text, history, and deep structure" as well as precedents that are themselves well-grounded.

I agree with nearly all of the Amar, Amar, and Calabresi (AAC) brief, although I strongly disagree with its framing. They write:

In recent landmark rulings, this Court has properly recommitted itself to originalism, promising to interpret the Constitution as Americans publicly understood the document when adopting it, with special attention to governmental actions immediately preceding and immediately glossing the enacted text. Dobbs v. Jackson Whole Women’s Health Org., 142 S. Ct. 2228 (2022); N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Principled originalism compels rejection of Petitioners’ claims.

What?! The Court has properly committed itself to originalism? Dobbs and Bruen are exemplars of principled originalism? Even if such a thing were possible in more than a handful of the sorts of cases that reach the Supreme Court (and it isn't), Bruen shows that this Court doesn't practice principled originalism. As joint dissent said in describing how the Bruen majority cherry-picked its history to discount all antecedents for the challenged New York law:

In each instance, the Court finds a reason to discount the historical evidence’s persuasive force. Some of the laws New York has identified are too old. But others are too recent. Still others did not last long enough. Some applied to too few people. Some were enacted for the wrong reasons. Some may have been based on a constitutional rationale that is now impossible to identify. Some arose in historically unique circumstances. And some are not sufficiently  analogous to the licensing regime at issue here.

Yet despite my deep skepticism of the way that the AAC brief frames the issue in Moore, I find the brief's evidence and analysis compelling. After all, even scholars like me, who do not identify as originalists, readily accept that evidence regarding the original meaning of a constitutional provision is often highly relevant to its proper implementation and application to current controversies. We can and do have original meaning without originalism.

More importantly, of course, the brief is a piece of advocacy that aims at the current Supreme Court, a majority of whom do frequently claim to be originalists. So one can read it conditionally: If one is an originalist, then one should reject ISL.

Still, in filing a scholars' brief, AAC should not simply be engaged in advocacy. They should be stating their own best understanding of the Constitution. While it is within the bounds of acceptable advocacy for lawyers to make arguments that benefit their clients even though they don't themselves agree with those arguments, different norms apply to scholars. Does that render the AAC brief problematic?

Not necessarily. Akhil Amar has long fashioned himself an originalist--albeit one whose dives into history as often lead to liberal or moderate results as to conservative ones. Vik Amar has also described himself as an originalist, albeit using a somewhat idiosyncratic definition of originalism. As he wrote in a Verdict column ten years ago, "I consider myself an originalist in that I think interpreting text without looking at the historical context that generated that text makes no sense." That's idiosyncratic because, as I noted above, non-originalists like me do not advocate ignoring the historical context that generated the Constitutional text. 

Whatever kind of originalist Vik Amar might be, Calabresi is an easy call. His work is pervasively originalist. No one could question his originalist bona fides, which is why the fact that he joined the Amars in filing their brief is so important. It's a signal to any potentially persuadable Republican appointees on the Court that originalism cuts strongly against ISL. Indeed, Calabresi is not simply an originalist scholar. He is a co-founder of the Federalist Society and one of two co-chairmen of its Board of Directors (along with Leonard Leo)

Except that perhaps now that Calabresi is coming out for democracy and supporting race-based affirmative action, he no longer counts as an originalist? So one might infer from the self-owning and self-defeating attempt at a gag order (really a gag suggestion?) that Calabresi's fellow FedSoc Board members have attempted to impose on him. On Friday, Nina Totenberg tweeted the following excerpt of her interview with Calabresi:

Steven Calabresi: The [Federalist] Society's Board of Directors has voted that I ask any journalist I talk to not to identify me as either a co-founder or Co-Chairman of the Board of Directors.

Nina Totenberg: Excuse me!!! You were the co-founder. I can't not identify you. That's crazy!

SC: I have said that to the Board of Directors. They have rejected that position.

NT: Well my position is I can't do that. That's censorship . . . .

SC: It's ridiculous, yes. It's ridiculous.

In his discussion of this episode on Above the Law, Joe Patrice observes that the timing of the gag-suggestion indicates it was a response to Calabresi's letter to the Yale Daily News in which Calabresi noted that the Federalist Society doesn't take positions on contentious legal or policy issues and pointed to his own liberal views on affirmative action and reparations for slavery and Jim Crow. If so, the Fed Soc Board's reaction undercuts the protestation. The Board didn't tell Calabresi not to identify himself as a co-founder of Fed Soc when he was vigorously opposing abortion rights (as he has for his entire career).

Strictly as a matter of logic, the episode does not fully discredit originalism. One can still think that there is such a thing as principled originalism that judges and Justices are supposed to practice, regardless of whether it leads to conservative or liberal results. But even if so, that supposition would have to come with the caveat that the leading proponents of originalism don't for a moment believe in it as an apolitical tool. The Fed Soc website proclaims the "duty of the judiciary to say what the law is, not what it should be." Evidently, it also includes an implicit exception: unless what the law is doesn't align with the ideological druthers or institutional interests of the Republican Party; then it's the duty of the judiciary to pretend the law is what we  wish it were.