http://www.washingtonmonthly.com/features/2000/0003.landay.htmlThey operated on two tracks--designed to insure that the Reagan Revolution would well outlast the Reagan Presidency. The first, to reclaim the Federal courts from liberals, swept an array of conservative scholars and judges from law schools and state courts onto the Federal bench: the likes of Robert Bork, Ralph Winter, Antonin Scalia, Richard Posner, Sandra Day O¹Connor, and Anthony Kennedy.
The second track was even more forward looking and involved the apprenticing of a new generation of conservative lawyer-intellectuals-under-30 to the Reagan apparat. This second track required fresh meat, which is where the Federalist Society came in. The founding chapters of the Society were established at Yale, where Bork taught before Reagan nominated him to the bench, and at the University of Chicago, where Scalia was faculty advisor and from whose ranks he would later recruit former student-Federalists to prestigious Supreme Court clerkships. Originally the chapters were little more than a debating circle and comfort station for young conservatives who felt themselves victimized by liberal persecution. The Society¹s executive director Eugene Meyer recalls of his experience at Yale Law School that "someone was writing Œfascist¹ on our posters, or taking them down. Then cooler faculty heads
channeled our angers and frustrations into organizational activity." Keen self-promoters, they made a mascot of James Madison (on the debatable grounds that he favored decentralized government in his later years) and took the name of Madison¹s 18th-century Federalist Party as their own.
For the Reaganites running the federal government in the 1980s, the Society was a godsend. Here was a group of hard-charging legal minds committed to a set of principles that could not have been better suited to the judicial implementation of a Republican agenda if Ed Meese had drafted them himself. The Federalists were (and remain) "originalist" in their approach to the Constitution--meaning that they favored strict textual readings that tended to shear back constitutional principles developed during the more liberal Warren Court era. In terms of substantive law, they promoted the conservative mantra of states¹ rights to leach power away from "big government" in Washington. At a deeper intellectual level they tended to be either libertarians (meaning that they opposed government regulation as an intrusion on individual liberty) or devotees of the free-market cult of law and economics (meaning that they opposed government regulation for interfering with "market efficiencies").
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Naturally, the new Washington establishment snapped up the founding Federalists. The student cadre graduated and went to work in the Reagan White House and Justice Department, and to clerk in the chambers of newly appointed conservative judges. Edward Lazarus, whose recent book, Closed Chambers, momentarily breached the sanctity of Supreme Court manners and procedures, recalls the arrival of 10 young Federalists as clerks in the October 1988 term ("the cabal," they called themselves), who "created a critical mass of ideological conservatives." Lazarus, a "dreaded Lib," clerked for moderate Justice Harry Blackmun, and records how the Cabal ran its own email network. They "obsessively" worked as a "collective mission" to influence conservative justices, notably on death-penalty cases expediting executions, about which one emailed the others: "We need to get our numbers up." Lazarus quoted another cabalist who, venting his rage about the refusal of the Senate to confirm Robert Bork for a seat on the high court, said: "Every time I draw blood, I¹ll think of what they did to Bork."
Perhaps the network¹s most far-reaching victory in recent years was a 1999 decision by a Federal appellate panel of DC Circuit judges in a case called American Trucking v. EPA , which stunned clean-air advocates by rolling back EPA standards covering smog and soot. The decision was based on the principle of "non-delegation," a rigid and archaic reading of the Constitution, which holds that Congress retains all legislative authority, but not the power to delegate regulatory power to executive agencies. C. Boyden Gray, a member of the Federalist Society¹s Board of Trustees, filed a friend-of-the-court brief in American Trucking. Gray was also good enough to share his insights on non-delegation with the Federalist convention in November when he moderated a panel discussion entitled: "The Non-Delegation Doctrine Lives!"
One extraordinary thing about the American Trucking decision was just how well it served private industry at the expense of the public interest. A commentator writing in a Federalist Society newsletter crowed that American Trucking will save industry "in the neighborhood of $45 billion per year." Perhaps that is true--and perhaps industry would save even more money if the courts decide to eliminate, for example, the Food and Drug Administration¹s jurisdiction over food and drugs. But the social costs would be enormous.
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