Given the recent history-making goings-on at the U.S. Supreme Court, there has been much attention again paid to the conservative intellectual infrastructure that helped influence the teaching and practice of constitutional law in the country during the past half century, including to philanthropic support for that infrastructure's creation and maintenance. We thus republish the below article, which first appeared during a previous round of such attention. The Capital Research Center originally featured it on September 4, 2018, and Philanthropy Daily featured it on September 5, 2018.
Leading up to this week’s Senate Judiciary Committee confirmation hearings for Judge Brett Kavanaugh to become an Associate Justice of the Supreme Court, there has been much in-depth coverage of and commentary about the Federalist Society for Law & Public Policy Studies’ success in changing America’s legal culture and the courts—prominently including in The New York Times Magazine and, most recently, this past weekend in Politico Magazine.
This coverage has generally—and correctly—recognized the effectiveness of the Federalist Society’s strategies and tactics in affecting American legal culture through its student chapters at law schools, lawyers’ chapters in cities around the country, practice groups for various types of attorneys, and other initiatives.
Some of this establishment-journalism coverage has also included passing recognition of donors who have made philanthropic investments in the Federalist Society. In the interesting Politico Magazine article on the Society’s founding in 1982, for example, Michael Kruse writes, “One factor that helped to make the Federalist Society something far more than simply an important student uprising was a thrilled collection of right-wing donors who had been waiting for precisely this sort of organization. Backed by the [Institute for Educational Affairs], the Scaife Foundation, the Olin Foundation, the Bradley Foundation and the Deer Creek Foundation, to go with membership dues, the society’s budget vaulted past $1 million.”
Others on the left and right have previously credited such early funding for the Society’s ultimate success. For instance, in his Philanthropy Roundtable guidebook for donors on the Olin and Bradley Foundations, Strategic Investment in Ideas: How Two Foundations Reshaped America, John J. Miller quotes IEA chairman Irving Kristol on their Federalist Society support, “That was the best money we ever spent at IEA.”
Given the recent attention to the Federalist Society, and the context in which it is being paid, there might be benefit—to policy-oriented givers of whatever ideology, as well as those who advise them—in underscoring some specific, underappreciated lessons from the Society’s early philanthropic support:
There is great risk that the latest coverage of the Federalist Society will fool donors into thinking that effective philanthropies can easily cook up effective institutions like FedSoc if they’re just strategically clever enough. As Kruse’s Politico Magazine piece makes clear, however, the role played by givers in the early 1980s was to recognize the importance of what others—the law-school students—were trying to accomplish, after they had undertaken to accomplish it. First come the activists, who are determined to do something whether they’re grant recipients or not. Foundation-concocted movements in and of themselves seldom succeed so well.
The Society’s founding conference was in ’82—1982, 36 years ago. That’s a decades-long time horizon. The donors’ patience in measuring outcomes, if they even did so at all, was well worth exercising in hindsight. But had they insisted on strict measurement from the beginning, such patience might not have seemed so much worth exercising for years afterwards. And such patience probably would not be practiced by many givers today.
From that beginning in ’82, the Society was overridingly dedicated to ideas. Its chapters hosted debates between conservatives and liberals, and among conservatives. It enthusiastically and thoughtfully explored these ideas, and it engaged those with whom it disagreed with genuine respect. It was serious, it took ideas seriously, it took interlocutors seriously—and everyone quickly came to know it. Its funders had known this aspect from the get-go, and over time this intellectual seriousness and open-mindedness proved well worth it.
These lessons should be noted by the current enemies of the Federalist Society, who want to depict it as something other than it is. But more importantly, these lessons need be learnt by any current givers who hope to achieve successes comparable to the Society’s, now and decades from now.