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Behind Supreme Court’s Obamacare Case, A Secretive Society’s Hidden Hand

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Nina Martin reports at ProPublica:

The Supreme Court has no shortage of potentially precedent-shattering cases on its docket this term. But the one the justices are hearing tomorrow, King v. Burwell, could be the most consequential.

King focuses on the issue of whether low-income people who get insurance under the Affordable Care Act’s federal exchanges are entitled to tax subsidies. Much has been said (and written) about what could happen if the justices rule “no”: Millions of people in as many as 37 states could lose their health coverage. The political earthquake could be cataclysmic.

Yet, few reports have highlighted the role of the Federalist Society, the conservative law group whose ideas are at the intellectual heart of the King v. Burwell challenge. That’s not surprising, given that the group’s members have played a mostly behind-the-scenes part in King — and in many of the most significant conservative legal victories of the last 30 years.

In a new book, “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” Pomona College political scientist Amanda Hollis-Brusky channels her inner investigative journalist to trace the group’s influence on the courts, and especially, the Supreme Court.

Note: This interview has been edited for clarity and length.

Q. What is the Federalist Society? What did it grow out of?

A. The Federalist Society was founded in 1982 by a small group of conservative and libertarian law students at Yale and the University of Chicago. Many of the founders had worked on the Reagan presidential campaign, and when they arrived in their elite law schools, they noticed a profound mismatch between the ideas that were achieving political ascendancy — about limited government and free markets and states’ rights — and a liberal orthodoxy that was embedded in almost all major legal institutions of the time.

Flash forward 30 years: The Federalist Society has matured into a self-professed “society of ideas” that claims 40,000 to 60,000 members. These include every Republican-appointed attorney general and solicitor general since the 1980s, dozens of federal judges, and four sitting U.S. Supreme Court justices: Antonin Scalia, who was one of the organization’s original mentors at the University of Chicago; Clarence Thomas, Samuel Alito and John Roberts.

Q. How does it operate?

A. The Federalist Society doesn’t exhibit its power in a way that is easily recognizable. It doesn’t bring court cases, or lobby, or publish position papers, or officially endorse political or judicial candidates. Instead, it trains and socializes its members through thousands of events every year. It promotes collaboration. Members are encouraged to draw on their training and networks as they go about their work as judges, policy makers, litigators and academics. In this way, the Federalist Society’s influence is one step removed from the policy process. Yet that influence is profound.

Q. The Federalist Society doesn’t even make public its membership rosters. How did you trace its impact on policy and the courts?

A. I used speaker agendas from Federalist Society national student conferences and lawyer conferences from 1982 to 2012 to construct a database of everyone who’s ever participated in one of these meetings: 1,190 individuals in all. These are the thought leaders — the Mick Jaggers of the movement. If you are invited to speak at a national conference, it signals true believership.

Then I tracked their movements: What Supreme Court cases were they participating in? Were they consistently promoting a certain kind of scholarship or set of beliefs?

I identified the key areas of law that have taken a significant conservative turn over the past 30 years. And by reviewing transcripts from meetings and conferences, I was able to show how those ideas were gestated within the Federalist Society network for decades before being accepted by the Supreme Court.

Q. What kind of ideas? . . .

Continue reading.

In general, secrecy is anathema to democracy, since secrecy is prima facie evidence that what is being kept secret is not in the public interest—if it were, secrecy would not be needed.

Written by LeisureGuy

3 March 2015 at 12:38 pm

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