The Federalist Society has been in the news (and in my Twitter feed) a lot lately, as people criticize both things that happened at a national convention last week, and things that have been said and done by a couple of its officials, especially Leonard Leo and Steven Calabresi.
This has led to claims that the Society is in fact a partisan organization because of its supposed role in picking judges, to calls that the organization disavow or denounce various things, and to arguments that members of the society have some moral culpability for what other members of the society do.
I am a member of the Federalist Society, but I don’t see things this way and thought I’d try to explain why. As I see it, the Federalist Society is essentially a network that connects thousands of scholars, students, and lawyers. There is obviously some intellectual valence to that network — it is not a random network — but it’s usually a mistake to discuss the network as a collective noun.
Thus, I don’t think it’s right to say that the Federalist Society picks judges. Some judges have been members of the Federalist Society, and so have some people who participated in the selection process. And sharing a network may well make some of those judges more likely to be picked by others in the network. (This is not going to happen to me, to be clear.) But the society doesn’t do anything. Individuals like Leonard Leo and Don McGahn do.
Similarly, I think it’s a mistake to expect the Federalist Society to take official positions beyond, perhaps, its relatively open-ended mission statement. Because the Society is not a legislative, adjudicative, or deliberative body it doesn’t really have a mechanism for taking positions. The positions are held by members of the network. And for the same reason, the fact that one member of the Society, or even an official of the society, has taken a position doesn’t attribute it to the others or to the group.
Finally there is the question of collective responsibility. Unlike the previous two points, I don’t think we can dismiss that out of hand. Maybe there is some kind of collective responsibility to abandon a network or group if you disagree with enough people in the group over enough sufficiently profound issues. Or maybe there is at least a duty to publicly comment on the behavior of other members of the group. But I find thinking of the group as a network helpful in framing these questions. By being part of a network the main thing one is offering is not political power or official endorsement, but one’s own willingness to freely associate.