A "legal organization" sworn to injustice
Can decent America afford to let the Federalist Society live?
The Republican Party loves bad lawyers
Marc Elias published a scathing article a few month ago lashing the legal profession for training up scumbags that would use their legal expertise to attack democracy.
He pointed out that Trump has had a large cadre of perverse lawyers. There have always been crooked lawyers who would tell their clients what they want to hear. But Trump’s dozens of terrible lawyers not only do that. They also use their legal expertise to generate sophistical and barely believable arguments to clog up the courts while delaying and hopefully thwarting justice.
Take, for instance, John Eastman. This louse dreamed up the “fake elector" plot that set up the violence on January 6. Even while he was doing it, he knew it was BS. He admitted in a meeting that the Supreme Court would strike down his reasoning 9-0. He is now about to lose his law license in California for misusing his legal expertise.
And yet the Republican party continues to use him to file fake election complaints.
What makes Republicans so wedded to these miscreants?
The relevant factor that all these scum lawyers have in common is this: They are all members of the Federalist Society.
Elias mentions this in his article, but he doesn’t give it the weight it deserves. This is not a criticism. He is trying to get the whole legal profession to confront its responsibility for letting vermin proliferate within its ranks.
But if the legal profession really wants to clean up its act, it needs to crack down on the Federalist Society—and preferably eradicate it.
The injustice practiced by the Federalist Society
The Federalist Society is the breeding ground of devious, disingenuous, and deceitful lawyers whose “training” is aimed at only one thing—getting "conservatives” what they want. It cares nothing for truth, and even less than nothing for justice. Its entire intention is in misusing the law to attain “conservative” ends. It was invented to find ways around the law by using law-like subterfuges.
The most famous of these subterfuges is “originalism,” the notion that the law can only mean what the lawmakers who made the law intended. This foolish and puerile “theory” was seen as useful for turning back liberal interpretations that "conservatives" disliked. Its popularity hinged on a similarly puerile “Christian” notion that the Bible is God’s word and therefore inviolate. Similarly, the text of a law is the lawmaker's word and therefore inviolate.
Of course both of these notions are ridiculous. The Bible is open to so many interpretations that there is hardly a passage that does not have multiple meanings. And the text of a law is ambiguous on several counts. First, because the lawmakers themselves often have different ideas about what the law means. Second, because of the inherent ambiguity of language, especially with the passage of time. And third, because of the inherent generality of laws, which must be tempered by the actual cases to which they are applied. (The last point means this: one finds out what a law means when it starts being used in actual cases and actual judges have to say how it applies.)
But all “conservative” jurisprudence is ridiculous. The very notion is antithetical to justice. The fact that “conservatives” don’t like judicial decisions that go against their interests is no justification for inventing a partisan judicial theory. There is only one judicial theory that matters—determining truth and justice to the highest degree humanly possible. Everything else—especially twisting legal interpretation to produce results favored by “conservatives”—is perverted and unjust.
And that is precisely what the Federalist Society aims to do.
The rot at the core of the Federalist Society
I have written before of the foundational lie that the Federalist Society tells the world. It is contained in its own statement of purpose:
[The Federalist Society] is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.
The second and third of these principles are true. But the first is false—and its falsity supports the Society’s misuse of the separation of powers and judicial review.
The first “principle” is false because the state does not exist to preserve freedom—especially not freedom conceived as the personal right to ignore the common welfare. The state exists to establish justice. Freedom can be had without the state, if one is willing to live in Hobbes’s state of nature, where everyone has the “freedom” to bash everyone else over the head and take his property.
But government exists to prevent this. It establishes justice, which limits what people can and cannot do to one another. The very notion of justice is restrictive. It limits personal freedom by preventing people from behaving in certain ways toward one another. The Society’s first “principle” states the opposite of the truth with deceptive banality. Then it applies this falsehood to its second and third principles, corrupting them as well.
The members of the Society see the separation of powers not as a means of attaining justice but as a means of short-circuiting governmental restrictions on their self-centered desires. They regard judicial review not as a means of preventing legislative or executive tyranny, but as a means of overturning government restrictions on their self-centered desires.
In short, by adopting a false first “principle,” they subvert the meaning of the legal system. In their hands, the legal system stops pursuing justice—which is inherently liberal and progressive. Instead, the Federalist Society aims at twisting justice to favor “conservative” outcomes. And, as I’ve explained in my book Conservative Estimate, the desire to twist justice implicates all the bad character traits emanating from the excessive fear of loss that motivates all “conservatives.”
“Conservatives” fear restraints of any kind. They regard them as losses, and a loss to them is a kind of death. Of course, they preach restraint to others because they feel instinctively that if others restrain themselves, “conservatives” will be able to take advantage of them. But when it comes to themselves, they can be counted on to throw off any and all restraints that hinder their selfish ends.
But the whole purpose of government is to stop such people from taking advantage of others. That is what justice is at its most basic level—preventing selfish people from harming decent people.
So the purpose of the Federalist Society is the purpose of “conservatism” itself: undoing government’s restraints on selfish behavior. All the political efforts of “conservatism” bend toward that end. And that is why “conservatives” created the Federalist Society—precisely to twist the legal system into knots, to use it against society, to prevent government from establishing justice.
What the legal profession really has to reform
The Federalist Society is therefore not a legitimate legal organization. It pretends to champion freedom but it actually attacks justice. And attacking justice is attacking the very purpose of government. It cares not a whit for truth but defends self-interest. Just a look at all the Trump lawyers who have been willing to throw bombs into the legal system. They spew out ludicrous “defenses” of Trumpist illegality. They get swatted down unceremoniously by the majority of judges, who still can tell BS from real argument.
The Federalist Society trains “conservative” lawyers in sophistry and a sort of ferret-like shrewdness. It teaches them to hide selfishness and hostility to decent restraint behind a show of freedom and independence. But it certainly does not teach them to value truth and justice—the two essentials of legal temperament.
Is is any surprise that training in sophistry and shrewdness produces people without a moral compass, people who think they can always bend the system to their interests, people who disdain truth and justice as impediments to their desires? Do we really think that people trained to use deception and trickery to attain their ends will develop decent character and integrity? On the contrary, when you learn to use deception on others, you end up deceiving yourself that your deceptiveness is a higher value than decency.
If a legitimate legal organization found that a few of its members not only took that attitude toward their own profession but put it into practice, that organization would act swiftly to strike those people from its rolls and to reform its training to stop producing such people.
But this is not the response of the Federalist Society to the fact that all the lawyers involved in Trump’s attempted coup are members of the Society. It is not the response of the Society to the fact that its members on the Supreme Court disdain integrity, reject codes of conduct, and act as though their shady, pay-for-play relationships with “conservative” billionaires are a prerogative of their position.
The Federalist Society does not try to rein in their members, as any decent organization would do—precisely because those members are doing exactly what the members of the Society want, namely, impeding government from protecting society from their unjust self-interest.
The bottom line is that the Federalist Society seeks the exact opposite of what any legitimate legal organization would seek. It seeks to destroy justice rather than to defend it.
What the legal profession really needs to reform is its leniency toward the “ideas” that the Federalist Society promulgates. Its “theories,” its “interpretations,” and its “training” inculcate bad character. Its activities produce criminal lawyers and unjust “justices.” Its mere existence in our society accelerates the disease of viciously selfish “conservatism” that is destroying decent America.
Marc Elias’s call for a reckoning in the legal profession really boils down to this: the profession needs to crack down on the Federalist Society (and other “conservative” legal groups imitating it). Its main training centers must be decertified. Its members need to be sanctioned. Its attitudes need to be shunned. Its “beliefs” need to be repudiated.
What government has to do to help
And it is not just the legal profession that must do this. All of government needs to attack the Federalist Society as befits a sworn enemy to justice. If decent America finally rises up to effectively remove “conservatives” from positions of power in government that can protect the Federalist Society, decent lawmakers need to mount an all-of-government investigation of the Society.
What such an investigation will turn up is a sea of “conservative” influence-peddling and corruption just as murky as that in which the Republican party swims, because the Federalist Society is the plutocrats’ legal-defense arm just as the Republican party is their political shock force.
And the results of the investigation, in a just society that prosecutes those who conspire to pervert justice, would be the eradication of both the Federalist Society and the Republican party.
And that would a go long way toward restoring justice in our long-suffering democracy.
Thanks for the compliment, Lee. I just write 'em as I see 'em.
As always, brilliantly written, Scott