Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!
A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.
Shortly after the January 6, 2021 attack on the U.S. Capitol, there was soul-searching within the Federalist Society, the influential group of conservative and libertarian lawyers, over what (if anything) the organization should do to speak out against the riot or distance itself from then-president Donald Trump. Today, almost three years later, right-of-center lawyers continue to disagree over Trump, the clear frontrunner for the Republican presidential nomination.
Some prominent conservative attorneys believe that more must be done to prevent his return to the White House—and that the Federalist Society hasn’t done its part. Take last week’s New York Times op-ed from former Wachtell Lipton partner George Conway, former Fourth Circuit judge J. Michael Luttig, and former congresswoman Barbara Comstock (R-Va.). They wrote that their new nonprofit, the Society for the Rule of Law, fills a need for “an organization of conservative lawyers committed to the foundational constitutional principles we once all agreed upon,” including “the primacy of American democracy, the sanctity of the Constitution, and the rule of law.”
Some conservative lawyers are surely wondering right now: How is the Society for the Rule of Law different from the Federalist Society, as a group of center-right lawyers with a professed commitment to the Constitution and rule of law? (For ease of reference and variation in word choice in this piece, I’ll sometimes refer to the Society for the Rule of Law as “the Society” and the Federalist Society as “FedSoc.”)
‘Crisis’ Response
The Society board members alleged in their op-ed that FedSoc “has failed to respond in this period of crisis” and “conspicuously declined to speak out against the constitutional and other legal excesses of Mr. Trump and his administration. Most notably, it has failed to reckon with his effort to overturn the last presidential election and his continued denial that he lost that election.”
The Society for the Rule of Law announced its launch on November 6 as a successor to Checks and Balances, formed in 2018 by “center-right, pro-democracy attorneys who were alarmed by the direction of the conservative legal movement” during the Trump administration. Luttig said the Society plans for more activities than its predecessor, thanks to an influx of funding orchestrated by Republican political strategist Sarah Longwell.
The well-connected Longwell, a leading figure in Never Trump circles, is perhaps best known as publisher of The Bulwark, an analysis website she co-founded in 2018 with Charlie Sykes and Bill Kristol. Longwell is also executive director of the Defending Democracy Together Institute, a 501(c)(3) that supported Checks and Balances and helped secure additional funding to enable its relaunch as the Society for the Rule of Law this month. The Society’s donors are philanthropic foundations that support its mission of protecting and strengthening the rule of law, according to spokesperson Tony Franquiz.
Different Missions?
The criticism of the Federalist Society by the Society for the Rule of Law didn’t go over well among some legal conservatives. Georgetown law professor Randy Barnett said on X (formerly Twitter) that “@JudgeLuttig’s dumping on the Federalist Society the way he did in this op-ed was childish and inaccurate.” Barnett linked to a thread on X by Casey Mattox of libertarian group Americans for Prosperity, who said that FedSoc “is not a think tank” and is “more like a debate society,” featuring “robust debates between people with different views”—including non-conservatives such as Federal Trade Commission chair Lina Khan.
In conversations for this column, Federalist Society members and staff shared two main defenses. First, they echoed the “debate society” aspect, citing FedSoc’s policy that it does not “take positions on legal or policy issues or engage in other forms of political advocacy,” instead choosing to “focus on fostering debate and discussion of important legal topics.”
Second, they emphasized that many of the lawyers and judges who stopped Trump’s effort to overturn the 2020 presidential election were or are Federalist Society members—including White House lawyers who disputed the legality of his plans, top Justice Department lawyers who threatened to resign en masse, and his three Supreme Court appointees who refused to entertain his legal claims.
In my calls with them, Luttig and Alan Raul, the Society for the Rule of Law’s secretary, acknowledged these points had some validity, then toned down or at least qualified their criticism. (George Conway arguably did the same in a post on X: “I don’t think it’s all that productive to delve too deeply into what @fedsoc has or has not done, or does or does not do.”)
“We all love the Federalist Society, and we don’t think of ourselves as competing with them at all,” Luttig clarified. “We think of it as the opposite—we hope to collaborate in the future if they are interested.”
And Luttig and Raul agreed with my Federalist Society sources that the organizations have different missions. Raul said the Society plans to issue statements and file amicus briefs as an organization, which FedSoc doesn’t do. Consistent with that, as Luttig explained, there are actually two distinct entities: the Society for the Rule of Law, which is a 501(c)(3), and its affiliated Society for the Rule of Law Institute, which is a 501(c)(4)—and as such can do certain things the Society can’t, such as endorse or oppose political candidates. (The Times piece was written on behalf of the Institute rather than the Society for this reason, since its pointed criticism of Trump could be regarded as opposing a political candidate.)
Perhaps the bigger issue is whether the Society for the Rule of Law stands for something beyond opposition to Donald Trump. Its mission statement doesn’t refer to Trump, and Luttig and Raul frequently avoided mentioning him by name in interviews—referring to Trump and his allies using terms such as “the former president” and “the powers that be.” But as the Times piece makes clear, the Society’s focus is protecting democracy from Trump.
So is this organization defined entirely by its enemy? And when the day eventually comes when Trump is no longer on the American political scene, will the Society for the Rule of Law still have reason to exist?
The Society says yes—because the damage done by Trump to our democracy is enduring.
“America will never recover from these tragic three years, and the world will never look at America as a beacon of democracy in the same way again,” Luttig declared. “Consequently, there will now always be a need for protectors of democracy, especially in the legal profession.”
“Regarding the urgency of our mission, we hope it subsides, and hopefully our efforts will make a difference in getting us to that point,” Raul told me. “But we do see a value and purpose beyond the current tribulation. As conservative and center-right lawyers, we see advancing the rule of law and protecting the Constitution as an ongoing mission.”
“Lawyers take an oath to support the Constitution and the rule of law,” Luttig said. “We are uniquely positioned—and uniquely obligated—to support and defend American democracy at this moment in our history.”
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Thanks, David. Curious to see how the "Society" progresses, if at all...
So glad they walked back the criticism. We may need both organizations. Horses for courses. Why fight?