The Federalist Society and the 5-4 Supreme Court Majority

All five right of center judges on the Supreme Court are, or have been at one time or another, members or supporters of the Federalist Society.   I have mentioned that society of conservative lawyers and law students often whenever writing about the Supreme Court  — both of Trump’s Supreme Court justices were selected from a list of twenty-five carefully vetted Federalist Society recommended ideologically pure candidates.    Here is a feature article about the Federalist Society  which gives a lot of excellent background, history and some chilling reporting. 

This is David Montgomery from that detailed piece in the Washington Post Magazine:

There is much for this crowd to celebrate. The conservative and libertarian society for law and public policy studies has reached an unprecedented peak of power and influence. Brett Kavanaugh, whose membership in the society dates to his Yale Law School days, has just been elevated to the Supreme Court; he is the second of President Trump’s appointees, following Neil Gorsuch, another justice closely associated with the society.  They join Justice Clarence Thomas (who said last spring he’s “been a part of the Federalist Society now since meeting with them … in the 1980s”), Chief Justice John Roberts (listed as a member in 1997-98) and Justice Samuel Alito (a periodic speaker at society events). The newly solidified conservative majority on the court will inevitably decide more cases in line with the society’s ideals — which include checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning. In practice, this could mean fewer regulations of the environment and health care, more businesses allowed to refuse service to customers on religious grounds, and denial of protections claimed by newly vocal classes of minorities, such as transgender people.

The creators of the Federalist Society understood that controlling the narrative to shape public opinion is an important precondition to making laws favorable to that point of view.   Moscow Mitch on the Federalists, from the David Montgomery piece:

“My goal … is to do everything we can for as long as we can to transform the federal judiciary, because everything else we do is transitory,” McConnell says. “The closest thing we will ever have an opportunity to do to have the longest impact on the country is confirming these great men and women and transforming the judiciary for as long into the future as we can.” McConnell notes that the judges list played a big part in getting Trump elected. The majority leader looks out over the gathering almost mistily as he concludes: “I hope you are proud of what we’ve done.”

As far as the Federalist Society’s longterm effect on culture and the law:

Much of the Federalist Society’s influence comes not from its very public Washington victories but from its behind-the-scenes, grass-roots ability to shift the law at the idea level, even the cultural level.

The creators of the Federalist Society, who also created many influential “think tanks”, ALEC — the American Legislative Exchange Counsel (authors of “Stand Your Ground” laws and others like it), endowed university professorships, generously funded otherwise fringe, insurgent political campaigns, put on-point talking heads into every public debate, funded “grassroots” political “movements” like the “Tea Party”, hired public relations firms and pollsters to promote their views — and private investigators to find kompromat on enemies they consider dangerous (they found nothing on Jane Mayer when she was investigating the Koch network) have largely succeeded in mainstreaming their once extreme, unpopular views.   Here’s a description of one of countless similar campaigns.    The Federalist Society’s professional network is an integral part of this larger plan.

Surfacing promising judicial candidates who can be nominated when conservatives have electoral power is just one byproduct of the network, and on its own maybe not the most important one, Teles explains. There’s a supply-and-demand relationship between the judges and the network. The judges need scholarship and arguments extending Federalist principles into new areas. Where new legal theories depart from the status quo, they need them to be vetted and legitimized through public debate. They require targeted cases raising questions that provide an opening to move the law. Without professors and lawyers in the network filling that demand, Teles says, “you’re not going to maximize what you got through the electoral process.”

Some very fine people, the finest people, one suspects.  Like Federalist Society members George Conway and Don McGahn, both giddy at the recent black tie Federalist Society victory celebration bash.


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