The American Bar Association and the Federalist Society
a few thoughts on taking sides
Last week the American Bar Association filed an amicus brief in the birthright citizenship case in the Supreme Court. The brief is on the correct side, and one of my friends and mentors is on the cover, and I have no quarrel with it. It’s also not the first time the ABA has filed amicus briefs on contested questions of constitutional law, consistently on the left wing side of the issue: Skrmetti, SFFA, Dobbs, Bruen, and many many more.
But for some reason the filing made me think: Isn’t it kind of amazing that the ABA files a brief in the birthright citizenship case, while the Federalist Society has never filed an amicus brief in any case, and yet somehow the former is perceived as a neutral organization and the latter is perceived as a partisan organization? (The dispute six years ago about whether it should be forbidden for judges to join the Federalist Society is a window into these asymmetric perceptions.)
What explains this?
One possibility is that nobody actually has these perceptions, everybody knows the Federalist Society is the neutral nonpartisan organization and the ABA is the liberal partisan organization, and everybody just lies about it. Judging from my social media feed, some of my conservative friends have this account, but I do not believe it.
(A related possibility is that nobody actually has these perceptions, everybody knows that BOTH organizations are partisan. But judging from the judicial ethics debate linked above I think this view is even rarer.)
A second possibility is that the widespread perception is caused by liberal media bias. The average person with little working knowledge of either organization reads a lot of hit pieces on the Federalist Society, or vaguely nefarious mentions of the Federalist Society in the course of hit pieces on something else; and never reads a mainstream media expose about the ABA amicus brief program.
A third possibility is downstream of O’Sullivan’s Law (sometimes called Conquest’s Second Law), which holds: Any organization not explicitly and constitutionally right-wing will sooner or later become left-wing. O’Sullivan’s Law could of course explain what happened to the ABA. But is it possible that O’Sullivan’s Law also indirectly explains the perceptions of the two organizations? Those who haven’t fully internalized this principle fail to observe a once-neutral institution’s political slide over time. By contrast, to be immune to O’Sullivan’s Law an organization must be sufficiently conservative that it is no longer remembered or perceived as neutral. In both cases, the persistence of historical reputation causes people to overindex on an organization’s founding purpose relative to the positions it takes or doesn’t take.
A fourth possibility is that the perception is actually the truth: the ABA really is the neutral organization and the Federalist Society is not, and it’s just that the world and the courts are so right wing that neutrality requires the ABA to consistently argue for the less conservative side. Again, I think some of my friends might believe this one, but I do not.
A fifth possibility is that this is explained by the “overwhelmingly liberal” slant of the legal profession. Most lawyers are liberal, so the ABA perhaps reflects the view of the mainstream lawyer, even if it is not neutral relative to America as a whole. (By the same token, the Federalist Society appears partisan because conservative and libertarian lawyers are rare.) So most lawyers might think of these briefs as the Profession stands up for Principle! rather than Taking Sides on contested questions.
A sixth possibility is that the ABA appears more neutral because it is so inert. For all of these amicus briefs, does anybody think any of them have ever really influenced a case? Is it possible that the amicus briefs do not affect perceptions of the ABA because nobody reads them and nobody knows about them and they do not matter? By the same token, it is possible that without taking partisan positions or filing amicus briefs the Federalist Society is much more successful at influencing the development of ideas. The incorrect perception that the Federalist Society is partisan stems from the correct perception that the ideas developed by its members have had real consequences.
I welcome comments below.
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.