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Federalist Society, Applies a Double Standard, and Leads to Troubling Consequences

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Federalist Society, Applies a Double Standard, and Leads to Troubling Consequences March 18, 2020 Robert P. Deyling Assistant General Counsel Administrative Office of the United States Courts One Columbus Circle, NE Washington, D.C. 20544 Dear Mr. Deyling: We write to express our deep concern with the exposure draft of Advisory Opinion No. 117, recently issued by the Judicial Conference’s Code of Conduct Committee. We believe the exposure draft conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences. The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee’s internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft. Judges have long participated in and contributed to our robust legal community. The Judicial Code of Conduct urges that judges “not become isolated from the society in which [we] live[].”1 To that end, Canon 4 of the Code allows judges to serve as members—and even officers—of “nonprofit organization[s] devoted to the law, the legal system, or the administration of justice.”2 The commentary to Canon 4 “encourage[s]” judges to “contribute to the law” through membership in “a bar association, judicial conference, or other organization dedicated to the law,” including those focused on “revising substantive and procedural law.” For good reason. We are all better served when judges expose themselves to a wide array of legal ideas. And we would like to think that those organizations benefit from having judges participate in them. 1 Canon 4 Commentary. 2 Canon 4(A)(3). Moreover, Canon 4 authorizes judicial participation in community affairs more broadly: “A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects.” Membership in the Federalist Society is wholly consistent with the Code. Until recently, the Committee agreed. It previously recognized that members of the judiciary may join the American Constitution Society and donate to the Federalist Society.3 Given these prior opinions and the text of the Code, we are disturbed by the draft’s new position that membership in the Federalist Society violates the Code. The Committee offered a few reasons for its departure from the text and its long-held understanding of the Code. First, the Federalist Society purportedly advocates for “factional” policy positions rather than the “general improvement of the law.”4 Second, the mission of the Federalist Society would cause the public to “view judges holding membership in [the Society] to hold, advocate, and serve … conservative interests.”5 And third, although the Federalist Society is not a “political organization,” membership “implicate[s] Canon 5’s broad prohibition against political activity.”6 All of these arguments rest on a flawed understanding of the Federalist Society and of the Code itself. Take the claim that the Federalist Society advocates particular policies, rather than the general improvement of the law. The draft fails to identify a single “policy position” taken by the Federalist Society. That is because—to the best of our collective knowledge—the Federalist Society has never, in its several decades of existence, lobbied a policymaking body, filed an amicus brief, or otherwise advocated any policy change. We are at a loss to understand how membership can be seen as “indirect advocacy”7 of the organization’s policy positions when the organization itself takes no policy positions. The most the Committee can say is that the Federalist Society “describes itself as ‘a group of conservatives and libertarians dedicated to reforming the current legal order’” and that it has “promoted appreciation for the ‘role of separation of powers; federalism; limited, constitutional government; and the rule of law inprotecting individual freedom and traditional 3 Exposure Draft 4–5. 4 Id. at 6–7. 5 Id. at 7. 6 Id. 7 Id. 2 values.’”8 These broad, bedrock principles lie at the foundation of our American constitutional order. Joining an organization that supports these principles simply cannot prohibit judicial service. Adherence to these principles at most suggests partiality in favor of the Constitution itself, which all judges must support and defend. Moreover, the Committee has previously approved judicial membership in organizations that advocate far more specific legal positions. For example, it has blessed membership in the American Law Institute,9 which seeks to “clarify, modernize, and otherwise improve the law.”10 The Institute pursues this goal by publishing restatements and model codes, which advocate detailed changes to all aspects of the law. The Federalist Society’s approach to reform is comparatively mild. Instead of taking specific legal or policy positions, it facilitates open, informed, and robust debate. Indeed, anyone who attends a Federalist Society event will encounter a diversity of views far exceeding that of many law school faculties. Although not all of us are members of the Federalist Society, all of us who have attended its events can attest to this. As the New York Times has reported, Federalist Society events “scrupulously include liberals as well as conservatives.”11 Every current member of the Supreme Court has participated in at least one Federalist Society event, as have hundreds of current and former federal judges of all judicial philosophies. So have countless progressive scholars and attorneys, including Jack Balkin, William Eskridge, Michael Gerhardt, Heather Gerken, Neal Katyal, Reva Siegel, Geoffrey Stone, Nadine Strossen, and Laurence Tribe.12 Judicial membership in such organizations should be encouraged, not banned. The Committee is wrong to term the activities of the Federalist Society as “political.”13 Canon 5 of the Code forbids judges from joining or contributing to any “political organization,” but “does not prevent a judge from engaging in activities described in Canon 8 Exposure Draft 6 (quoting Federalist Society, Our Background, https://fedsoc.org/our-background). 9 See Advisory Op. No. 93. 10 American Law Institute, About ALI, https://www.ali.org/about-ali. 11 Neil A. Lewis, A Conservative Legal Group Thrives in Bush’s Washington, New York Times (Apr. 18, 2001), https://www.nytimes.com/2001/04/18/us/a-conservative-legal-group-thrives-in-bush-s-washington.html. 12 See generally Federalist Society, Contributors, https://fedsoc.org/contributors. 13 Exposure Draft 7. 3 4.”14 To avoid any conflict with Canon 4, the commentary to Canon 5 narrowly defines a “political organization” as “a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.” Canon 5’s prohibition plainly does not apply to a law-related organization like the Federalist Society. Accordingly, Federalist Society programs cannot fairly be described as “political,” especially given the diversity of views reflected by judicial and other participants. The exposure draft’s conclusions also rest on a double standard. As the draft acknowledges, the Federalist Society was formed as an alternative to the largest national voluntary bar association, the American Bar Association. Yet the Committee opposes judicial membership in the Federalist Society while permitting judicial membership in the ABA. This disparate treatment is untenable. For some time now, the ABA has taken “public and generally liberal positions on all sorts of divisive issues.”15 What’s more, the ABA does so by directly advocating for particular outcomes inparticular cases.16 Not long ago, the ABA submittedan amicus brief ina pending Supreme Court case related to abortion.17 The ABA also filed amicus briefs in other contentious cases like Masterpiece Cakeshop18 and Trump v. Hawaii.19 And before that, the ABA weighed inon cases involving gender identity,20 affirmative action,21 same-sex marriage,22 and 14 Canon 5(C). 15 Adam Liptak, Legal Group’s Neutrality Is Challenged, N.Y. Times (Mar. 30, 2009), https://www.nytimes.com/2009/03/31/us/31bar.html. 16 See generally ABA, Amicus Library, https://www.americanbar.org/groups/committees/amicus/1998-present. 17 Brief for the American Bar Association as Amicus Curiae Supporting Petitioners, June Med. Servs. L.L.C. v. Gee, 140 S. Ct. 35 (mem.) (2019) (No. 18-1323), 2019 WL 6524880. 18 Brief for the American Bar Association as Amicus Curiae Supporting Respondents, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111), 2017 WL 5152968. 19 Brief for the American Bar Association as Amicus Curiae Supporting Respondents, Trump v. Hawaii, 138 S. Ct. 2392 (2018) (No. 17-965), 2018 WL 1605656. 20 Brief for the American Bar Association as Amicus Curiae Supporting Respondent, Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 1239 (mem.) (2017) (No. 16-273), 2017 WL 894897. 21 Brief for the American Bar Association as Amicus Curiae Supporting Respondents, Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981), 2015 WL 6754979. 22 Brief for the American Bar Association as Amicus Curiae Supporting Petitioners, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (Nos. 14-571, 14-574), 2015 WL 1045422. 4 the Second Amendment.23 In fact, over the last decade, the ABA has filed more than 100 amicus briefs
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