The Federalist Society: Architects of the American dystopia
The US Supreme Court has become nothing but an enforcer of the current conservative agenda – but how did we get here?
Last week was one of the most consequential weeks in the history of the United States Supreme Court – and perhaps that of the country itself.
In a matter of days, the court shielded police officers from being sued for Miranda violations; further broadened its already expansive interpretation of gun rights; narrowed the separation of church and state when it comes to religious education; and overturned Roe v Wade, eliminating the right to abortion and eroding the underlying rights to privacy and control over one’s own body upon which Roe had been built.
Millions of people who are infuriated, terrified or dismayed by the Supreme Court’s decisions have put the blame for these outcomes on different people: The conservative justices themselves who set aside precedent to enact their agenda; Donald Trump, Mitch McConnell and the other Republicans who nominated and confirmed these judges; and of course ineffective Democrats who failed to heed warning signs that such results were on their way and do something to avert the looming threats.
Amid all the recriminations, some opponents of the court’s recent decisions have held one organisation in particular responsible for these developments: The Federalist Society for Law and Public Policy Studies, an organisation that is far from a household name, but that wields almost unparalleled power within the US government.
The Federalist Society, as it is commonly known by the people who are even aware of its existence, started out in the 1980s as a debating society for conservative students at a handful of elite American law schools such as Yale and the University of Chicago.
Initially, the main purpose of the organisation was to provide space for conservatives on university campuses to develop arguments against what they saw as domineering liberal interpretations of the law. The Federalist Society instead promoted an approach called “textualism” or “originalism”, which its proponents say interprets laws based on the plain meaning of their wording and the ways in which they were understood at the time they were passed.
But as many other groups and societies started in the Reagan era, the Federalist Society quickly grew beyond its original role as a campus-based conservative discussion group. In a matter of a few decades, alongside the NRA, Family Research Council, the Heritage Foundation, and others, the Federalist Society became an expansive and extremely politically influential network counting among its members countless influential judges, attorneys and scholars.
On paper, the organisation still claims that it is merely a legal debating society that does not “lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service”. These claims are almost laughably absurd. Over the years, the Federalist Society has become the single most powerful force influencing the American judiciary.
Beginning with Ronald Reagan, the Federalist Society has developed extensive connections with every Republican administration. The organisation and the GOP have created a pipeline to the judiciary, making Federalist Society membership almost a prerequisite to gaining a judicial appointment during periods of Republican control. All six of the Republican-appointed justices currently on the Supreme Court are affiliated with the society, as were nearly all of the federal judges appointed by Trump.
Leonard Leo, the society’s executive vice president, has been perhaps the single most influential person responsible for building the Supreme Court’s conservative majority, having played major roles in the confirmation of all six conservative justices. Leo personally drafted lists of acceptable nominees for each of Trump’s three Supreme Court picks, and he helped both presidents Trump and George W Bush strategise about how to get their picks confirmed. Leo’s control over the Republican nomination process has been so extensive that the Trump White House was said to have “outsourced” the process to Leo.
Although named for the contingent of America’s founders who advocated for a stronger central government in the new country, the Federalist Society is only loosely affiliated with the views and philosophy of the original Federalists. These early American statesmen – James Madison, Alexander Hamilton, and John Jay – generally argued for a strong federal government as proposed in the US Constitution. They were opposed by people like Patrick Henry and Thomas Jefferson who favoured stronger states and a relatively weak national government.
This Federalist/Anti-Federalist divide does not neatly map onto today’s liberal vs conservative divide – indeed, the organisation reportedly chose its name as a joke and not a declaration of principle – and the modern Federalist Society is much more a creature of current politics than it is of foundational principles.
When it suits the conservative agenda, the Federalist Society and its disciples hamstring the power of states, such as the Supreme Court’s decision last week to strike down New York’s open-carry gun regulations. At other times, however, they act as strong advocates for states’ rights. We have just seen this in their latest decision on the issue of abortion, where they moved the power back to the states at the cost of practically erasing women’s right to abortion.
Rather than an independent proponent of a coherent and overarching set of political principles, the Federalist Society’s so-called commitment to “textualism” largely serves as an enforcement arm of other conservative interests, using the judiciary to push through the agendas of the NRA, the Religious Right and other wings of the current Republican coalition.
Senator Sheldon Whitehouse (D-RI) has documented how major Republican donors have funnelled millions of dollars of “dark money” into the Federalist Society each year to push what he calls “an anti-regulation, anti-union, and anti-environment agenda”. Thus, for all its power and influence, the Federalist Society is in many ways simply a tool through which to implement a series of right-wing agendas.
But as a tool, the society has been an extremely useful one. Speaking at the Federalist Society’s 2018 annual Washington DC gala, Senate Majority Leader Mitch McConnell praised his own work and that of the Federalist Society in “transforming the judiciary for as long into the future as we can”.
Last week was perhaps the most prominent display of the Federalist Society’s success. The organisation’s majority in the Supreme Court handed victories to cops, gun enthusiasts and churches, major constituencies within the Republican Party. And the culmination of a 40-year quest to overturn Roe marked the biggest triumph for the Federalist Society and the ultra-conservative coalition it represents.
Yet this may only be the beginning. Though Justice Alito’s opinion (which was already leaked in May) killed Roe and the presumptions of privacy that undergird it, Justice Thomas’s concurrent opinion indicated where this development might lead, calling for the review of rights to contraception, same-sex marriage, and same-sex sexual relations, among other currently-protected rights. This is not simply speculation; some Republican leaders have already flirted with the idea of scaling back these rights.
Just as the increasingly authoritarian and conspiratorial Republican Party continues to make a mockery of the patriotism it espouses – as it most obviously did last January 6 – the Federalist Society betrays the principles of the original Federalists, whose advocacy for a strong national government was combined with an unquestioned acknowledgement of individual rights. As the Federalist Society continues to implement the GOP’s arch-conservative agenda through the judicial system, the continued erosion of individual rights will likely go down in history as the organisation’s most significant legacy.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.