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The Federalist Society, Monopoly and a Conservative Intellectual Collapse
What does the identity crisis on the right mean?
I’ve spent some time over the past year trying to understand the conservative legal movement, which has placed six of the nine current Supreme Court justices on the court. Conservatives have organized themselves at law schools in something called the Federalist Society, which is a debating club and networking system designed to promote the fusion of social conservatives concerned about abortion, immigration, and gay rights with libertarian conservatives who want to reduce controls over capital.
Harvard Law professor Jack Goldsmith wrote a wonderful essay on the Trump era, and how it has induced a collapse in the fusionism at the heart of the Federalist Society. The basic problem was introduced by Antonin Scalia, one of the original influences of FedSoc. When he got onto the court in the 1980s, he pursued a very strong role for the executive branch known as ‘Chevron deference’ because in his view liberal judges had been inappropriately striking down Reagan’s various rules. Scalia was also a strong social conservative, indeed, a hero to social conservatives.
Conservatives bought into Chevron for decades, until the Obama era. Then, a host of rules, like net neutrality, angered libertarians, who turned against the regulatory state. At the same time, social conservatives, despite supporting the Federalist Society project, watched as their judges refused to strike down Roe vs Wade, and as society expanded gay and transgender rights, often through the courts. The Federalist Society was quietly financed by large corporations, with whom social conservatives were willing to partner on tax cuts and deregulation, in return for their goals.
When Don McGahn, Trump’s official in charge of judicial picks, spoke about his goals, he talked about the need to roll back the regulatory state. McGahn went so far as to say that Scalia, were he alive today, wouldn’t even make the cut for his list of nominees, . So now there’s a revolt by social conservatives, and a deep tension within the Federalist Society. That’s the narrative, anyway.
In my book, I wrote about the rise of the conservative legal movement, organized in many ways by Robert Bork in the 1960s/1970s and then Scalia, his junior partner, in the 1980s onward. And I suspect Goldsmith’s narrative, which is the commonly accepted view in conservative legal circles, skips over a key part of the history that occurred before the Federalist Society was even formed. That is, they do not see the importance of Bork and Scalia's erosion of the anti-monopoly tradition in American law. The legal case Trinko - which got rid of Section 2 claims - is a useful and consequential decision here.
Here's Scalia in Trinko: "The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system." Bork, Scalia, and then the Federalist Society oriented themselves around the idea of ‘originalism,’ meaning that they sought to cabin laws by the meaning of the Constitution at the time it was written, and that judicial interpretations should adhere close to statute. Trinko makes a mockery of that notion, as does the entire Chicago School approach to the Sherman Antitrust Act.
Indeed, as George Priest notes, in the 1960s/1970s, Robert Bork made intentional strategic choices to *distort* legal history so as to undermine the Sherman Act and the will of Congress. This was explicit. Bork moved power to judges from Congress in contravention of plain statute. The reason this point doesn’t come up in Federalist Society debates is because the Federalist Society emerged in the early 1980s, after Bork and Scalia had *already* won the debate over the legal framework for our political economy. Trinko was a logical endpoint.
And they had won the debate everywhere, not just on the right. Bork's law and economics movement won the hearts of the elite progressive academic world and the economics world in the 70s. Here's Nobel Prize winning economist George Stigler: "By 1980 there remained scarcely a trace of the old antimonopoly framework in the economic literature." Legal liberals like Herb Hovenkamp accepted and expanded Bork’s thinking as well.
Debates over Chevron and social conservative questions happen without being tethered to the broader law and economics pro-monopoly project from which FedSoc came. Debating societies don't focus on settled questions; monopoly was a settled question.
Today it's not. Big tech dominance is blowing up the assumptions on which FedSoc fusionism is based. You simply cannot be a social conservative and tolerate perceived progressive monopolies like Google. But you can't be a libertarian and accept antitrust to break up Google. In other words, while the current debate appears to be over abstract questions of institutional design, the real tension has little to do with the regulatory state itself, and more with the broader question of private power.
It's more than just big tech, of course. Chinese aggressive, the financial crisis, and the broad collapse of neoliberalism and expertise are all undermining the elitist assumptions of the legal academy in general. And a whole series of decisions, from Matsushita, Linkline, Amex, etc, have structured a political economy to enable the consolidation of power in the hands of a few dominant actors in our economy.
The fundamental problem is that the Federalist Society and the conservative legal academy, because Bork, Scalia, et al eliminated their conservative anti-monopoly tradition, have no way to talk about the problem of *private power,* which is basically state power in another guise. That's why anti-monopoly arguments are both intellectually vibrant, and a challenge to the judge-centered philosophy of FedSoc and legal liberalism. It's why Congress is once again becoming an interesting place for political debate and policymaking.
The conservative legal movement is under intellectual strain but not because its ostensible ideological opponent - progressives at law schools - matter. Take for instance the American Constitution Society, which is supposed to be the liberal version of the Federalist Society. ACS has no content and is funded by big tech, just like FedSoc. No, the reason there’s tension is because a strong anti-monopoly movement, which doesn’t fit anywhere neatly in the political spectrum but is a foundational American tradition, is back.
All of this is a way of saying that I hope conservative legal scholars begin to rethink their assumptions about political economy and culture, beyond just Chevron and the spectrum of social questions they are used to thinking about. Our cultural institutions at this point reflect consolidated market power, and it’s time to begin making that connection explicit.