FedSoc is a villain in the story of the the past ~40 years of change in American law for a lot of liberals and moderates. A villain usually doesn’t have resonance with those engaging with the story unless they present a real threat and/or bring real consequences. And the consequences in this case also have faces in Supreme Court justices who appear pretty often in the news.
Conversely, when I encounter conservative criticism of the ABA, it’s usually not as heated. It’s more descriptive and less urgent, lamenting partisanship without worry that the ABA will actually change anything.
The difference in emotional association probably matters a lot for how the stories stick at the national level.
Combo of your fifth possiblity plus (7) That FedSoc doesn’t file amicus briefs doesn’t oust its status as a clearinghouse for conservative legal ideas and the foundational network for conservative lawyers; and those two roles are the sources of its partisan (or at a minimum ideological) reputation.
I think liberal vs conservative is slightly the wrong framing. I think (partisan) Democrat vs Republican is a better framing. Hasn't it become the norm that Republican administrations *only* appoint judges who are Fed Soc members? Is it the same for ABA membership? You can say that's because choosing a non-Fed Soc lawyer is very likely to be liberal, but that seems to be *because* conservative lawyers are joining Fed Soc more so than the general leanings of all lawyers. To put it another way, since the mid 2000s, it seems that to be appointed a judge by a Republican administration a lawyer must be a Fed Soc member. The same doesn't seem true about the ABA. The partisan perception comes more from overt political party behavior and not overt organization behavior.
I'm curious if there has ever been anything equivalent to Leonard Leo for the ABA: a long time leadership member whose entire career outside the organization is devoted to a partisan political project and has worked extremely closely with republican administrations. The leadership of these organizations definitely seems to influence their public perception.
Personally I don't believe that any person or organization can be truly "non-partisan": everything at the end of the day is a judgement call that can be framed in a partisan light. It certainly seems like Fed Soc has made a very clear choice to never submit amicus briefs so that they can claim "non-partisan" status, but I don't think these briefs are the defining feature of "partisan". For example, the ABA brief in Dobbs seemed to be entirely about stare decisis. I don't think it's necessarily partisan for the ABA to say "hey, courts at every level of the legal profession have been using stare decisis for a long time and if you'd like to keep that principle strong you shouldn't overrule Roe". (Of course it's also easy to say, hey they argued against overturning Roe so they're liberal) This seems to be closely related to your sixth point: ABA is often arguing against big change, i.e. more inertia.
I also tend to think originalism and textualism are inherently conservative methods of interpretation. In their meetings, conferences, and writings, Fed Soc seems to spend a disproportionate amount of time on these interpretive methods. Ironically I think Fed Soc would appear *less partisan* if they put out more explicitly liberal work that essentially says "this is how we can accomplish what liberals want with originalism and textualism".
Imagine, if you will, a candid amicus brief filed by the FS. It would directly appeal to the goals of each conservative justice, no matter how unrelated they are to the case at hand. To Justice Alito, the brief would explain how a proffered resolution would (however incrementally) facilitate the eventual restoration of church (or Church) domination of everyday life and personal choices. Cynical? No. Just realistic.
I think there’s a fact we know that doesn’t fit cleanly into any of your points: the organizations’ public self-concepts are different. Compare the ABA’s “Mission and Goals” with the Federalist Society’s “About Us: Our Purpose.” Neither is expressly partisan. Only one (FedSoc) is expressly ideological and identitarian: it describes itself as “a group of conservatives and libertarians.” There is no comparable ideological valence in the ABA’s stated self concept. Expressly adopted political ideology informs perception of partisanship, and it is rational to draw that inference.
You’re raising a false dichotomy between the two organizations which leads to a presumption about how the larger populace perceives them. That the ABA files “partisan” briefs that may or may not be well received makes them no different than any organization with a point of view. The Federalist Society’s leaders and members are in the highest echelons of government and are shaping our reality. That they aren’t filing briefs is irrelevant when your worldview is dominant. That’s what matters and that’s what people see.
Neither organization is neutral, but the Federalist Society has proven far more tactically effective in shaping the law by philosophically aligning and training future judges with its (correct) view of the Rule of Law than seeking to influence individual cases through amicus filings relying on any (incorrect) perceived neutral authority.
An expansion of point six, is that by never filing amicus briefs The Federalist Society may make itself more open to charges of partisanship. In particular, through attribution of the coordinated actions of members to the Federalist Society itself.
Even though The Federalist Society disclaims producing any advocacy itself, Fed Soc being the political actor in the decision is often the simplest explanation. It is true that Fed Soc doesn't file amicus briefs; however, it's members often file coordinated briefs on the issue where the only (visible) point of coordination is The Federalist Society. (I acknowledge this often is a result of 'natural' ideological and social alignment, or allied entities and groups that have a more proximate but less visible coordination point, e.g. the Koch network.)
In the ABA's case, it is easy to know when the ABA is acting—it puts it's name on the brief—so, it is easier to say when it isn't acting. Even though the social and political dynamics may be an exact mirror of the coordination effects of The Federalist Society, the easy explanation of 'well if it was an ABA brief they would sign the brief' is available to decide what is and isn't attributable to the ABA.
That explanation isn't available to The Federalist Society, because it never files a brief in its name. All of this means that if an observer thinks the Federalist Society is more of a partisan actor than the Federalist Society's official position that observer is left to decide how attributable to the FedSoc itself any given act of advocacy is.
I think #5 is the explanation as to the ABA. But as to FedSoc I just think it’s overwhelmingly a function of the highest profile members’ perceived ideologies. People think ABA and think “accreditation” and “judicial nominee qualification assessment” (boring, bureaucracy) and then are either unaware of their amicus briefs or take them to be taking totally mundane positions.
But as to FedSoc, people have at best only vague notions of what it *does*, and associate it with its most prominent members at the national level and the most prominent members in law schools (if they’re lawyers). And those are pretty disproportionately pretty conservative slanted. There’s probably some circularity to this because the narrative at some point got entrenched and counteracted to the perception get less publicity.
Point six resonated with me.
FedSoc is a villain in the story of the the past ~40 years of change in American law for a lot of liberals and moderates. A villain usually doesn’t have resonance with those engaging with the story unless they present a real threat and/or bring real consequences. And the consequences in this case also have faces in Supreme Court justices who appear pretty often in the news.
Conversely, when I encounter conservative criticism of the ABA, it’s usually not as heated. It’s more descriptive and less urgent, lamenting partisanship without worry that the ABA will actually change anything.
The difference in emotional association probably matters a lot for how the stories stick at the national level.
Combo of your fifth possiblity plus (7) That FedSoc doesn’t file amicus briefs doesn’t oust its status as a clearinghouse for conservative legal ideas and the foundational network for conservative lawyers; and those two roles are the sources of its partisan (or at a minimum ideological) reputation.
I think liberal vs conservative is slightly the wrong framing. I think (partisan) Democrat vs Republican is a better framing. Hasn't it become the norm that Republican administrations *only* appoint judges who are Fed Soc members? Is it the same for ABA membership? You can say that's because choosing a non-Fed Soc lawyer is very likely to be liberal, but that seems to be *because* conservative lawyers are joining Fed Soc more so than the general leanings of all lawyers. To put it another way, since the mid 2000s, it seems that to be appointed a judge by a Republican administration a lawyer must be a Fed Soc member. The same doesn't seem true about the ABA. The partisan perception comes more from overt political party behavior and not overt organization behavior.
I'm curious if there has ever been anything equivalent to Leonard Leo for the ABA: a long time leadership member whose entire career outside the organization is devoted to a partisan political project and has worked extremely closely with republican administrations. The leadership of these organizations definitely seems to influence their public perception.
Personally I don't believe that any person or organization can be truly "non-partisan": everything at the end of the day is a judgement call that can be framed in a partisan light. It certainly seems like Fed Soc has made a very clear choice to never submit amicus briefs so that they can claim "non-partisan" status, but I don't think these briefs are the defining feature of "partisan". For example, the ABA brief in Dobbs seemed to be entirely about stare decisis. I don't think it's necessarily partisan for the ABA to say "hey, courts at every level of the legal profession have been using stare decisis for a long time and if you'd like to keep that principle strong you shouldn't overrule Roe". (Of course it's also easy to say, hey they argued against overturning Roe so they're liberal) This seems to be closely related to your sixth point: ABA is often arguing against big change, i.e. more inertia.
I also tend to think originalism and textualism are inherently conservative methods of interpretation. In their meetings, conferences, and writings, Fed Soc seems to spend a disproportionate amount of time on these interpretive methods. Ironically I think Fed Soc would appear *less partisan* if they put out more explicitly liberal work that essentially says "this is how we can accomplish what liberals want with originalism and textualism".
Imagine, if you will, a candid amicus brief filed by the FS. It would directly appeal to the goals of each conservative justice, no matter how unrelated they are to the case at hand. To Justice Alito, the brief would explain how a proffered resolution would (however incrementally) facilitate the eventual restoration of church (or Church) domination of everyday life and personal choices. Cynical? No. Just realistic.
I think there’s a fact we know that doesn’t fit cleanly into any of your points: the organizations’ public self-concepts are different. Compare the ABA’s “Mission and Goals” with the Federalist Society’s “About Us: Our Purpose.” Neither is expressly partisan. Only one (FedSoc) is expressly ideological and identitarian: it describes itself as “a group of conservatives and libertarians.” There is no comparable ideological valence in the ABA’s stated self concept. Expressly adopted political ideology informs perception of partisanship, and it is rational to draw that inference.
You’re raising a false dichotomy between the two organizations which leads to a presumption about how the larger populace perceives them. That the ABA files “partisan” briefs that may or may not be well received makes them no different than any organization with a point of view. The Federalist Society’s leaders and members are in the highest echelons of government and are shaping our reality. That they aren’t filing briefs is irrelevant when your worldview is dominant. That’s what matters and that’s what people see.
Neither organization is neutral, but the Federalist Society has proven far more tactically effective in shaping the law by philosophically aligning and training future judges with its (correct) view of the Rule of Law than seeking to influence individual cases through amicus filings relying on any (incorrect) perceived neutral authority.
An expansion of point six, is that by never filing amicus briefs The Federalist Society may make itself more open to charges of partisanship. In particular, through attribution of the coordinated actions of members to the Federalist Society itself.
Even though The Federalist Society disclaims producing any advocacy itself, Fed Soc being the political actor in the decision is often the simplest explanation. It is true that Fed Soc doesn't file amicus briefs; however, it's members often file coordinated briefs on the issue where the only (visible) point of coordination is The Federalist Society. (I acknowledge this often is a result of 'natural' ideological and social alignment, or allied entities and groups that have a more proximate but less visible coordination point, e.g. the Koch network.)
In the ABA's case, it is easy to know when the ABA is acting—it puts it's name on the brief—so, it is easier to say when it isn't acting. Even though the social and political dynamics may be an exact mirror of the coordination effects of The Federalist Society, the easy explanation of 'well if it was an ABA brief they would sign the brief' is available to decide what is and isn't attributable to the ABA.
That explanation isn't available to The Federalist Society, because it never files a brief in its name. All of this means that if an observer thinks the Federalist Society is more of a partisan actor than the Federalist Society's official position that observer is left to decide how attributable to the FedSoc itself any given act of advocacy is.
#5
I think #5 is the explanation as to the ABA. But as to FedSoc I just think it’s overwhelmingly a function of the highest profile members’ perceived ideologies. People think ABA and think “accreditation” and “judicial nominee qualification assessment” (boring, bureaucracy) and then are either unaware of their amicus briefs or take them to be taking totally mundane positions.
But as to FedSoc, people have at best only vague notions of what it *does*, and associate it with its most prominent members at the national level and the most prominent members in law schools (if they’re lawyers). And those are pretty disproportionately pretty conservative slanted. There’s probably some circularity to this because the narrative at some point got entrenched and counteracted to the perception get less publicity.