The Federalist Society and the Supreme Court
Founded in 1982 on the campus of Yale Law School, The Federalist Society is relatively unknown outside of elite legal circles. Their self-proclaimed “unique” mission and purpose is to “[reorder] priorities within the legal system” to promote the ideas of freedom, penetration of government, and to quash Living Constitutionalism. As subtle as its public image outside of the campuses of law schools across the country, the Federalist Society’s influence on our Supreme Court and the state of our constitutional liberties cannot be understated in present times.
Our Supreme Court is suffering from a loss of legitimacy, as told by their own members. As Justice Elena Kagan noted, “Judges create legitimacy problems for themselves when they don’t act like courts,” especially, “when they instead stray into places that look like politics.” And she’s correct. Dramatic reversals of 50-year precedents are becoming commonplace in the highest courts, coinciding with historic lows in public support. Pew Research recently reported that fewer than half of Americans express a favorable opinion of the Supreme Court, correlating very strongly with political ideologies. Our court is becoming increasingly politicized, ideologically conservative, and willing to stray from the norms of an impartial and restrained Court. So, why is this happening? Here’s where the Federalist Society comes in.
The rise of the Federalist Society closely preceded the failed confirmation of Robert Bork to the Supreme Court in 1987, a divisive, galvanizing event for political and legal conservatives. When he was defeated in 1987 by a 58-person group of Senators concerned about his opposition to civil rights and to other civil liberties, Bork and his Republican allies turned to another tool for change — originalism. Bork, a staunch legal conservative, was one of the first individuals to tout originalism as a legitimate method of interpretation and an instrumental member of the newly-formed Federalist Society. This new mode of judicial interpretation provided the means for which the Federalist Society and its members in the judiciary and the legal community could advance a conservative rollback. Targeting the decisions of the Warren Court and others which advanced civil rights and instituted decisions — such as Roe v. Wade and Brown v. Board of Education — those in the Federalist Society claimed these decisions were “judicial activism,” which was unconstitutional. So what is originalism, exactly?
Originalism is most commonly recognized as a mode of judicial interpretation that seeks to follow the “original public meaning” of the language of the Constitution. Originalism places judicial authority on the Constitutional meanings as debated centuries ago — before women could vote, when enslavement was legalized, and before many of the technological developments we depend on today. Originalists seek to maintain fidelity with the public understanding of what the Constitution meant at its time of ratification, a fickle task. And this mode of interpretation is rife with disagreement, even among originalists. In short, they agree that the Constitution was fixed in some sort of meaning at the time of its founding, and that this meaning should constrain judicial interpretation. The rest is debatable.
Originalsism’s rise to dominance in conservative jurisprudence is in line with the rise and success of the Federalist Society. Today, FedSoc exists with broad control and influence over nominating conservative judges, and the ability to continue indoctrinating its members across law school campuses. They are aided by millions of dollars from donations and grants. But while touting their values, FedSoc raises money like our worst political campaigns, taking at least $250 million dollars in dark money. With their influence and political connections, the Federalist Society has politicized our supposedly non-partisan branch. This mode of funding echoes the ethics concerns of their most prestigious members, such as Justice Clarence Thomas, whose acceptance of massive undisclosed gifts prompted the adoption of a Supreme Court ethics code. In light of this, the claim that our Supreme Court continues to stay above ideology and politics is flimsy at best.
Some may argue that the existence of progressive originalists, for example, help reinforce the legitimacy of originalism and its clarity in judicial interpretation. Justice Ketanji Brown-Jackson’s affection for progressive originalism, for example, may show that a fidelity to the original public meaning of the Constitution is a non-ideological value. Some may argue that living-constitutionalism, for example, is malleable to ideology and holds a lack of clarity that is dangerous for democracy.
Unfortunately, self-described originalists on the Court have become just as malleable or even moreso, owing their decisions now to “history and tradition” rather than any set original public meaning. This mode of interpretation varies in its historical rigor, as was the case in Samuel Alito’s majority opinion in Dobbs v. Jackson, which struck down the 50-year precedent of Roe v. Wade, reverting abortion rights to before 1970. Wide criticism of the legal reasoning behind cases such as Dobbs have led many originalists to consider that a conservative mission to operate through ideology motivates their interpretations, rather than strict judicial restraint. More than originalism’s conservatism, it is its flimsy basis that originalists use for their arguments that threaten the legitimacy and the stability of our legal system.
The involvement of the Federalist Society in nominating judges, the rise of originalism, and the departure of the current Supreme Court is no coincidence. The Court is rife with members of the Federalist Society, spanning from Brett Kavanaugh, Clarence Thomas, and Chief Justice John Roberts to 90% of appellate judges nominated during the Trump years. Our Supreme Court, holding the future of America’s civil liberties, is firmly in the hands of the FedSoc. And this fact may have tremendously perilous implications for the future of our judicial branch.