Beginning today and extending through November 17, the Federalist Society will be holding its annual National Lawyers Convention. The Federalist Society is most famous as the largest constitutionalist legal organization in the United States; it was the breeding ground for several conservative justices (and one supposed conservative, Chief Justice John Roberts). The theme of the convention: “The Future of US Constitutional Law in the Supreme Court.”
It is slated to be a star-studded event. Justice Samuel Alito gives the keynote speech this evening; other heavy hitters include Peter Thiel, Ninth Circuit Chief Judge Alex Kozinski, Senator-Elect Sen. Ted Cruz (R-TX) (TX), Senator Sen. Mike Lee (R-UT) (UT), Gov. Rick Scott (FL), and Justice Antonin Scalia, among others.
Breitbart News had a chance to speak with Leonard Leo, Executive Vice President of the Federalist Society.
“The Federalist Society is basically an institution devoted to the idea that protecting limited, Constitutional government, defending the structural Constitution, such as separation of powers and federalism and limited powers, is the best way to preserve human freedom and dignity. And what we try to do is educate opinion leaders as well as the public about the importance of those ideals,” Leo explained. “We are also in the business of building a network and infrastructure of people who want to take those ideals and convert them to action by becoming citizen lawyers – lawyers who will go out into the world and find ways to put those principles into action. We also try to take the intellectual network we have, which is now over 53,000 people, and make sure they put those ideals into action by engaging in public service or policy.”
Leo did say that perhaps the hottest topic on the Federalist Society docket these days has been the Obamacare decision, wrongly decided by Chief Justice John Roberts, a former Federalist Society alum. “I think that if you roam the hallways of our convention, there’s sort of a split of opinion amongst people in our family and friends network,” said Leo. “There are some who recognize that five justices did embrace the proposition that there are discernable, enforceable limits on the Congress’ commerce power, and that there were seven votes for limits on the spending power of Congress. For some, while they may have greatly been frustrated by the outcome, there is a sense that those are important components in what the court did.
“But,” he continued, “there are others who are not as hopeful, and don’t see as much value to that. They believe that the way the Court went about deciding Obamacare signals that extrajudicial and extraconstitutional factors are being taken into account, and that a majority of the Cort is not originalist or textualist or as devoted to enforcing the structural Constitution. There’s a real split among people about whether there should be any positive view of what the Court actually did.”
Leo expressed the widespread concern among constitutional thinkers that the Supreme Court is moving away from a truly textual interpretation of the Constitution. But he added that there’s reason for optimism: “If you look over the last 25-30 years, there are positive moves in that direction. The court takes textualism more seriously than it did 25 years ago. Most justices on the court now feel compelled to grapple with the language of the statute in a way they didn’t 30 years ago. You have litigants before the court who lead with the language rather than the spirit of the law. There’s been some positive movement there. And there’s been some positive movement in terms of constitutionalism and originalism. In a way, we’re all originalists now. You have lots of liberal academics who want to stake out the originalist arguments for why their view of one issue or another is correct. They may be distorting the record, or they may be mistaken about what the original meaning concludes. But we have in some respects changed the terms of the debate regarding the importance of looking at the original meaning of the Constitution.”
The problem, said Leo, is that those philosophical approaches have had little impact on the case law. That’s thanks to the constituency of the Supreme Court, in large measure. “You have two longstanding, clear originalists – Scalia and Thomas. You have another justice, Alito, who has not been on the Court nearly as long but has demonstrated a commitment to originalism in a number of his recent decisions as well as public remarks. And then you have the Chief Justice. There are some indications that he may from time to time allow doctrines other than originalism to trump an originalist approach.”
“And then you have the Chief Justice’s record. There are some indications that he may from time to time allow doctrines other than originalism to trump an originalist approach.” Leo singled out for criticism Roberts’ doctrine of constitutional avoidance, which says that the Supreme Court should avoid any decision that would restrict legislative power, if at all possible. That doctrine precipitated the Obamacare decision. In short, said Leo, “You’ve got a long way to go until you’ve got an origianlist court. I don’t know if you’ll ever see one. I do know that originalism and textualism and a commitment to the structural Constitution are ideas that are more widely embraced today than they were 30 years ago.”
And the conference itself has become a real magnet for constitutional thinkers. There are 1,000 people attending this year’s conference. “There is a community deeply committed to defending the rule of law and the Constitution in our country. Those people who are there should take solace in that. And this should refresh them to become as actively involved as possible in defending our Constitutional system.”
UPDATE: Last night, Justice Alito reportedly gave a bang-up speech. Said Leo, “Justice Alito absolutely hit it out of the park last night with an unparalleled mixing of wit and substance. The speech was about as originalist as you can get, with one line that brought the house to sustained laughter and applause: he said you could buy Chemerinsky’s nearly 2000-page constitutional law casebook for $160, or Larry Tribe’s 1400-plus page treatise for $80, or an 800-page constitutional law nutshell for over $20. Or, you could actually just read the Constitution, which is downloadable for free. He then regaled the 1500 people in attendance with how constitutional law these days ignores the Constitution as the Founders framed it, and walked through a number of cases of the last term with this in mind.”