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.
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.
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.
I may be wrong about this, but I thought FedSoc played a major role in the first Trump term of providing the Trump administration with lists of lawyers to be judges and Justices. That seems very partisan to me.
An orthogonal but related point: I think the thing that bothers me most about this debate is the focus on the label “partisanship” rather than a normative evaluation of the results of the positions these organizations advocate. Whether FedSoc is partisan or not seems to me besides the point. Same with the ABA. Maybe the heart of the left’s criticisms of FedSoc is that it is partisan, but I dont think so. I believe that “conservative” or “Republican” label is actually just a useful shorthand for the fact that the philosophies FedSoc tends to foster lead to results on rights, regulation, and other matters that people on the left disfavor. That is my issue with the power FedSoc has.
Responding to that criticism by defending FedSoc’s nonpartisanship tries turns a substantive debate into a rhetorical one. I rarely see FedSoc friends of mine (honestly) contesting the point that FedSoc debated ideas tend to lean conservative and tend to favor the Republican Party’s positions.
Of course, the same points can be made about the ABA. But the ABA is a less firm ideological match for the Democratic or liberal position. The ABA tends to well represent the interests of corporate lawyers who are liberal on some issues but not on others (eg many regulatory matters). The ABA is also, as you point out, a lot less influential. It used to be that the ABA’s stances on bills had a lot of sway with Democrats on the judiciary committee, for instance, but that is much less the case now.
None of this is to disagree with your possible framings. But I do think the partisanship fight is really a waste of energy. But of course it is a very common waste of energy.
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".
First, why are we using positions in amicus briefs as the measure of partisanship? Lawyers, or groups of lawyers, have thoughts on what the right approach or outcome is, that does not make them inherently partisan.
Second, ABA appears to take its actions/positions clearly and openly, in publicly available amicus filings; perhaps that is the best foundation for concluding they are partisan but I am skeptical. Fedsoc professes to be neutral but (and here enters the potential media bias that these are reported on) there are many instances where it appears to wield influence in secretive, shady ways (whether this is picking Trump judges or the infamous “no mention of Ginni” payments).
I have been a member of both and they serve very different functions. Although the Federalist Society does have some programming on non-ideological subjects, its primary valence is of conservative thought and jurisprudence. The ABA on the other hand is predominantly focused on the practice of law without a particular ideology underlying the average event/program/project. Many groups and events at the ABA are dominated by Big Law firms whose lawyers predominantly represent large companies and wealthy individuals who can afford their rates. Those interest groups skew conservative. That doesn't mean that Big Law firm lawyers are conservative, but they tend not to push the law in a direction that directly and substantially harms their clients. So on the whole, I would argue that the ABA has more ideological diversity and is more "neutral" than the Federalist Society. Or so it was.
Unfortunately it seems as though the Trump administration wants to try to turn the ABA into a left wing version of the Federalist Society by publicly scolding the ABA and banning its lawyers from participating in ABA events. Unfortunately I think that is having the affect of pushing politically conservative lawyers out of participating in ABA, leaving only liberal lawyers behind. In my view that is sad and the world is worse off because of it.
Another possibility is that the amicus-brief-proposing-and-writing portion of the ABA is more partisan than other portions of the ABA, such as perhaps the judge-reviewing part or the law school accrediting part, or the Sections, or the membership generally.
I personally think FedSoc is non partisan and just applies the law, and the people who define that as partisan are actually themselves invested in sculpting the law to achieve their desired political outcomes. But it is what it is and that’s fine.
The genuine problem is the ABA (and many other very partisan liberal orgs) have successfully convinced the public that they are the voice of neutral bipartisanship, which allows them to marginalize the views of more than 50% of the country.
Just 2 more examples that come to mind:
1) They continue (in 2026) referring to the ERA as if it was properly ratified when no court has agreed with that. (See below)
2) this was back in 2019, but their letter opposing Judge VanDyke’s nomination still bothers me. It appears to have very biased and contained false allegations - there was never evidence presented to show otherwise. https://www.nationalreview.com/2019/12/smearing-lawrence-vandyke/amp/
Laughed hard at the unsupported (and unsupportable) assertion that the legal profession is supposedly "overwhelmingly liberal." That's a stunning generalization and overstatement. Liberal lawyers are liberal, conservative lawyers are conservative, and there are plenty of both.
Not a member of the ABA for decades. Formerly, Chair of Corp Counsel Comm of the TIPS Section, Did not find it woke (although it did not then exist). It is a much larger org than the Federalist Society with more diversity of interests, which makes filing of an amicus with a singular POV difficult. 14th "all persons born or naturalized in the U.S," likely seemed textually straightforward left or right for the ABA, particularly since Wong Kim Ark (1898) seemed to go beyond 14th just remedying the African American experience under Dred Scott.
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.
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.
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.
A mixture of the 3rd, 5th and 6th explanations, I think.
I may be wrong about this, but I thought FedSoc played a major role in the first Trump term of providing the Trump administration with lists of lawyers to be judges and Justices. That seems very partisan to me.
An orthogonal but related point: I think the thing that bothers me most about this debate is the focus on the label “partisanship” rather than a normative evaluation of the results of the positions these organizations advocate. Whether FedSoc is partisan or not seems to me besides the point. Same with the ABA. Maybe the heart of the left’s criticisms of FedSoc is that it is partisan, but I dont think so. I believe that “conservative” or “Republican” label is actually just a useful shorthand for the fact that the philosophies FedSoc tends to foster lead to results on rights, regulation, and other matters that people on the left disfavor. That is my issue with the power FedSoc has.
Responding to that criticism by defending FedSoc’s nonpartisanship tries turns a substantive debate into a rhetorical one. I rarely see FedSoc friends of mine (honestly) contesting the point that FedSoc debated ideas tend to lean conservative and tend to favor the Republican Party’s positions.
Of course, the same points can be made about the ABA. But the ABA is a less firm ideological match for the Democratic or liberal position. The ABA tends to well represent the interests of corporate lawyers who are liberal on some issues but not on others (eg many regulatory matters). The ABA is also, as you point out, a lot less influential. It used to be that the ABA’s stances on bills had a lot of sway with Democrats on the judiciary committee, for instance, but that is much less the case now.
None of this is to disagree with your possible framings. But I do think the partisanship fight is really a waste of energy. But of course it is a very common waste of energy.
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".
Many of these comments resonate with me.
First, why are we using positions in amicus briefs as the measure of partisanship? Lawyers, or groups of lawyers, have thoughts on what the right approach or outcome is, that does not make them inherently partisan.
Second, ABA appears to take its actions/positions clearly and openly, in publicly available amicus filings; perhaps that is the best foundation for concluding they are partisan but I am skeptical. Fedsoc professes to be neutral but (and here enters the potential media bias that these are reported on) there are many instances where it appears to wield influence in secretive, shady ways (whether this is picking Trump judges or the infamous “no mention of Ginni” payments).
I have been a member of both and they serve very different functions. Although the Federalist Society does have some programming on non-ideological subjects, its primary valence is of conservative thought and jurisprudence. The ABA on the other hand is predominantly focused on the practice of law without a particular ideology underlying the average event/program/project. Many groups and events at the ABA are dominated by Big Law firms whose lawyers predominantly represent large companies and wealthy individuals who can afford their rates. Those interest groups skew conservative. That doesn't mean that Big Law firm lawyers are conservative, but they tend not to push the law in a direction that directly and substantially harms their clients. So on the whole, I would argue that the ABA has more ideological diversity and is more "neutral" than the Federalist Society. Or so it was.
Unfortunately it seems as though the Trump administration wants to try to turn the ABA into a left wing version of the Federalist Society by publicly scolding the ABA and banning its lawyers from participating in ABA events. Unfortunately I think that is having the affect of pushing politically conservative lawyers out of participating in ABA, leaving only liberal lawyers behind. In my view that is sad and the world is worse off because of it.
Another possibility is that the amicus-brief-proposing-and-writing portion of the ABA is more partisan than other portions of the ABA, such as perhaps the judge-reviewing part or the law school accrediting part, or the Sections, or the membership generally.
It's rare I see a piece which so beautifully distills what so many have been thinking and talking about, so succinctly.
I personally think FedSoc is non partisan and just applies the law, and the people who define that as partisan are actually themselves invested in sculpting the law to achieve their desired political outcomes. But it is what it is and that’s fine.
The genuine problem is the ABA (and many other very partisan liberal orgs) have successfully convinced the public that they are the voice of neutral bipartisanship, which allows them to marginalize the views of more than 50% of the country.
Just 2 more examples that come to mind:
1) They continue (in 2026) referring to the ERA as if it was properly ratified when no court has agreed with that. (See below)
2) this was back in 2019, but their letter opposing Judge VanDyke’s nomination still bothers me. It appears to have very biased and contained false allegations - there was never evidence presented to show otherwise. https://www.nationalreview.com/2019/12/smearing-lawrence-vandyke/amp/
Laughed hard at the unsupported (and unsupportable) assertion that the legal profession is supposedly "overwhelmingly liberal." That's a stunning generalization and overstatement. Liberal lawyers are liberal, conservative lawyers are conservative, and there are plenty of both.
I don’t think the federalist society sees filing briefs as part of their mission.
Not a member of the ABA for decades. Formerly, Chair of Corp Counsel Comm of the TIPS Section, Did not find it woke (although it did not then exist). It is a much larger org than the Federalist Society with more diversity of interests, which makes filing of an amicus with a singular POV difficult. 14th "all persons born or naturalized in the U.S," likely seemed textually straightforward left or right for the ABA, particularly since Wong Kim Ark (1898) seemed to go beyond 14th just remedying the African American experience under Dred Scott.