Politico Writer’s Attack on the Federalist Society Is a Conspiratorial Mess

A Politico Magazine critique of the Federalist Society by contributing writer Ian Ward drops several thousand words outlining a dressed-up conspiracy theory that the conservative legal movement is reconsidering self-government.

Ward recently attended the Federalist Society’s National Student Symposium, immersing himself among the burgeoning class of the country’s conservative legal elite. He came away from the event concerned enough to issue the ominous, titular warning trumped by his headline: “The Federalist Society Isn’t Quite Sure About Democracy Anymore.”

The source of his error in judgment is an underdeveloped grasp of basic legal principles and theories. “Since its founding in 1982,” he writes, “the Federalist Society has championed ‘judicial restraint,’ the notion that judges should limit their roles to interpreting the law as written, leaving the actual business of lawmaking to democratically elected legislatures.”

“But now that conservatives have secured a solid majority on the Supreme Court,” frets Ward, “a spirited debate is underway within the Federalist Society about the wisdom of deferring to democratic majorities as a matter of principle.”

To support this claim, Ward cites one professor emeritus’s observation that simple majority rule could result in “tyrannical domination of the minority by the majority,” and a student’s subsequent observation that  “We’re a republic, not a democracy.” He calls this latter remark “a tongue-in-cheek slogan that some conservatives have adopted as a way to slyly signal their approval of minority rule.”

Yet neither of these utterances signal hostility to the idea of self-government. To the contrary, they express the centuries-0ld finding that the government should be guided by constraints enumerated in the Constitution.

In other contexts, progressives understand this principle intuitively. State legislatures are forbidden from criminalizing the burning of the American flag because it that would infringe upon an individual’s First Amendment right to speak freely. Most left-of-center legal scholars object to the Supreme Court’s overturning of Roe v. Wade because they believe the right to terminate a pregnancy can be discerned from the text of the Constitution. Discriminatory Jim Crow laws were the product of unconstrained majority rule enabled by the erroneous application of judicial restraint.

The left and right might disagree about what issues should be beyond the reach of majorities in the political branches, but they can hardly be said to disagree about the fact that some issues should be. To recognize as much isn’t to advance a dangerous, inherently anti-democratic, or even partisan opinion, but to acknowledge an established, descriptive feature of the American political system.

And speaking of such features, Ward charges a student — whom he did not take the time to interview — with championing “minority rule” for the crime of applying an accurate label to that system. The United States is a republic, because political decisions are made by elected representatives of the people. It is not a direct democracy, which is directly determined by voters on an issue-by-issue basis.

The rest of the piece is full of similarly unfair assumptions. Panelists told students to focus on persuading their peers rather than trying to coerce them, and rejected national divorce when asked about it. “But,” submits Ward, “the question seemed to linger in the room.”

The phrase resembles others used by Ward as a substitute for evidence, such as “there was a palpable sense that,” and “it became alarmingly clear that,” and is followed by no substantiation.

In another instance, he uses the quote “maybe we need more shitposters” as a subheading. Yet the quote comes from a pugnacious former Trump administration official and was made on a podcast of an entirely different organization several months ago. He draws the Federalist Society’s connection to the sentiment using only another quote from a single conference attendee who said that students had hoped one panel would be “fierier.”

One could certainly imagine the value of a critique of the judicial theories championed by Federalist Society members leveled by a knowledgeable progressive legal theorist. But Ward’s contribution to Politico, a misinterpretation of basic legal principles borne of either bad-faith or ignorance, is a conspiratorial mess.

This is an opinion piece. The views expressed in this article are those of just the author.