Phil Brest doesn’t need reminders of the challenges facing the American Constitution Society, the progressive networking organization founded a quarter-century ago to counter the conservative legal movement.
He knows about the dwindling financial support from corporate America and the factions that have splintered the left. He doesn’t dispute the success of the Federalist Society in stocking the bench with conservative judges, particularly the Supreme Court.
Brest has only been ACS’s president since January, and concedes he doesn’t have all the answers or a finished blueprint on how to reinvigorate an organization that some say has waned in influence and relevance.
He’s just starting a yearlong listening tour to meet with 100 of its 250 student and professional ACS chapters, at the same time concern — if not panic — builds over President Donald Trump’s boundary-breaking and frequently challenged maneuvers to implement his agenda.
There are, of course, skeptics who say that ACS has long been resistant to change; they’re waiting to see if Brest will simply be more of the same. Critics say that the legal left is overly fixated on full bore anti-Trumpism, and ACS is no different.
Still, Brest is hopeful. He sees ACS as the networking platform that not only helps identify and promote the strongest judicial candidates for the federal and state bench, but also fosters collaboration on legal challenges — such as those unfolding under the Trump administration.
This is a moment that should catalyze lawyers toward defending democracy and the rule of law, he said. ACS, and the legal community writ large, must meet the moment.
“There is so much coming at us on any given day that I do want ACS to continue being in a position to respond, to shine a light on the illegal and unconstitutional actions that are unfolding across the country,” Brest told Bloomberg Law in an interview last month.
Leadership Optimism
There’s a mix of enthusiasm and cautious optimism from ACS members and outside observers over Brest’s arrival, with some expecting him to bring a mix of fresh ideas and institutional know-how.
The 38-year-old comes to the role after leading President Joe Biden’s judicial confirmation efforts, which yielded 235 appointments—one more than the 234 in Trump’s first term. He’s also worked for top Democrats Dick Durbin and Dianne Feinstein on the Senate Judiciary Committee on oversight, investigations, and judicial nominations.
ACS members say Brest’s institutional clout should help the organization boost its fortunes. The $5.5 million in revenue it collected in 2024 was the lowest amount since 2018.
“They made a good choice in picking Phil. He adds things that they haven’t had and probably need right now,” said Wilfred Codrington, a constitutional law professor and ACS faculty adviser at Cardozo Law.
Even former staff members who were critical of ACS say they hope Brest can usher in a needed reset of an organization at times unwilling to address its deficiencies.
“I think a better world for all of us requires ACS to step up to the plate, and I hope that they’re willing to do that,” one told Bloomberg Law, requesting anonymity to avoid professional repercussions for speaking openly about a former employer.
The path to hiring Brest wasn’t seamless. The last president, former Wisconsin Democratic Sen. Russ Feingold, stepped down last April after five years in the role. And Brest wasn’t exactly waiting on the doorstep.
After almost a decade working at major law firms and at the highest levels of government, he wanted a break from politics, policy, and law, he said at a January ACS event about the progressive legal movement.
“My mentality was: ‘I’m tired. I think I need a little time out,’” he said.
But he couldn’t bring himself to stay on the sidelines as America’s democratic system underwent unprecedented stress-tests.
When he was approached last year by the organization about the position, he says he jumped at the opportunity. “I’m so glad I couldn’t escape,” he said.
Big Tent
ACS’s inability to match or exceed the resources and influence of the Federalist Society is well documented, alongside a plethora of theories that include a glut of left-leaning nonprofits vying for the same resources and a struggle to raise funds for left-leaning causes.
From its outset, ACS’s mission was also going to be much harder to accomplish. Whereas the Federalist Society is credited with helping to launch the conservative legal movement, ACS arrived in 2001 when legacy organizations such as the NAACP Legal Defense Fund, ACLU, and the Lawyers’ Committee for Civil Rights Under Law were already leading the charge on the other side.
The Federalist Society, founded in 1982, filled an unmet need: It was an intellectual home for right-leaning law students, academics, and lawyers who felt alienated by the dominance of liberal thought in law schools, legal organizations, and the legacy of the Warren Court’s jurisprudence.
“It’s easier to catch on—to catch fire—when you’re an outsider, when you are presenting yourself as the little guy, as the David against Goliath,” Brest said.
Still, Brest maintains that ACS provides something the other left-leaning groups don’t: a nationwide network and forum for students, lawyers, and judges to share, debate, and brainstorm progressive legal thought. He also pointed to its pipeline program to identify and support potential judicial candidates, which he said he consulted while considering potential Biden nominees for the federal bench.
He also sees a greater focus for ACS’s judicial and attorneys general pipeline programs on state courts as a bulwark against “threats of overreach by the Trump administration and the Roberts Court.”
He concedes that the value of ACS may not be as obvious to liberal law students whose views of the law already prevail in academia. Working lawyers also tend to skew liberal, according to research on their political giving.
ACS has long championed its “big tent” approach to coalition building: any and all are welcome. It’s not always so easy to execute, given the legal left’s array of competing priorities and views on theories of change.
“One of the deficiencies over the last 25 years is it captures not as wide of a base of the progressive left that you would think,” Codrington said of ACS.
Scott Cummings, a University of California at Los Angeles law professor who’s spoken at chapter events, said ACS needs to prioritize what speaks to upcoming generations of lawyers in this moment “as the world shifts so dramatically and mainstream institutions are being tested.”
Compelling Ideas
ACS didn’t hold its usual in-person convention last year, which in the past hosted speakers including former Vice President Al Gore, Justice Sonia Sotomayor and then-Vice President Biden. Instead, it opted for a virtual convention in June, so more members “focused on mobilizing to protect against new threats to rights and democratic institutions” could attend, a spokesperson said.
The group cut staff in 2024 due to budgetary issues. Its funding has, at best, plateaued.
To grow stronger, another former staff member said, ACS will need to deliver a compelling mission and vision among a sea of organizations working toward a progressive vision of the law.
“Continuing to put money into organizations that don’t have that kind of compelling vision of where they’re headed is a hard case to make,” said the former staff member, granted anonymity to speak openly about the group.
There have been signs of a turnaround. Its national convention will return in-person this summer. ACS is also in the process of hiring for a slew of full-time positions, including a director of policy and program to lead its legal and public policy work and a major gifts officer to support fundraising efforts.
Brest has also pledged more outreach to law firms and institutional donors, including philanthropic foundations. The group will ramp up its focus on corporate America and in-house legal departments as well.
“For corporations that care about the rule of law, about due process,” he said, “there’s no reason those companies shouldn’t embrace an organization like ACS that is committed to these overarching, universal principles.”
Getting ordinary, non-lawyer Americans acclimated to the idea that “democracy is actually under threat” can seem an abstract concept, but it’s a lane ACS can fill, said Melissa Murray, a New York University constitutional law professor and former ACS academic advisory board member.
“If you’re someone who’s not a lawyer, and you’re just living your life, it’s like: Wait a minute, I just registered for the next election. What do you mean democracy is falling apart?” she said.
At the same time, the organization’s opposition to the current administration’s actions has left conservatives such as Josh Blackman, a South Texas College constitutional law professor and prominent Federalist Society member, to believe “antitrumpism” is the only ideology that ACS has to stand on.
“ACS can never rival FedSoc,” Blackman wrote in a piece for the libertarian and conservative legal blog The Volokh Conspiracy. “It is not because of lack of funds or lack of power, but due to a lack of ideas.”
Brest rejects that notion, but the implications of such criticism aren’t lost on him.
The progressive legal movement has long been criticized for being results-oriented rather than driven by constitutional doctrine, unlike the Federalist Society, whose north star has been originalism.
That legal doctrine, first evangelized among Federalist Society members in the 1980s, calls for laws to be interpreted as they would have been at the time they were adopted.
Mike Fragoso, former chief counsel to then-Senate Majority Leader Mitch McConnell (R-Ky.), is a Brest friend and an originalist. He said Brest’s experience with judicial nominations, the Senate, and the White House position him to help translate theory into a jurisprudence that has practical value.
“Legal theories in a vacuum aren’t necessarily all that valuable,” he said.
Brest contends the genius of originalism isn’t its intellectual heft.
“It’s in its framing and messaging and simplicity,” he said. “Part of what we haven’t done, part of why we have fallen short, is that we haven’t thought about public resonance.”
To contact the reporter on this story:
To contact the editors responsible for this story:
Learn more about Bloomberg Law or Log In to keep reading:
See Breaking News in Context
Bloomberg Law provides trusted coverage of current events enhanced with legal analysis.
Already a subscriber?
Log in to keep reading or access research tools and resources.