Shark in the Water: The Federalist Society

Gun Rights

The Federalist Society is arguably the most powerful interest group in America. What started as a few conservative law students has morphed into the most lethal anti-progress weapon in the modern right’s arsenal. Today, there are six Federalist Society members on the Supreme Court, and its members comprised 90% of all appellate court appointments made by former President Donald Trump and 50% by George W. Bush.

And now, the same organization that was essential to the overturning of Roe v. Wade and undoing what was considered to be a “super precedent” is hunting for its next victim.

So what is the Federalist Society, what is its playbook, and what’s next? To look forward, first we have to look back.

The year was 1982. Right-wing students at the law schools of Yale, Harvard, and the University of Chicago gathered simultaneously, united by their disgust over America’s progressive movement. Abortion had been legalized, and the gains of the Civil Rights Movement and the half-century legacy of the New Deal were vermin to these conservatives. These upstarts realized that, in order to turn back the clock, they needed a weapon that was immune from popular support — an arena in which their vastly unpopular ideas could still be enacted.

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They found inspiration in a constitutional legal approach known as “originalism.” Originalism dictated that the Constitution was a non-living document, rather than one that changed as the country did. Its words were only to be interpreted as its framers intended, not adapted in any way.

These students eventually called themselves the Federalist Society, and they spent their early days nurtured by the nation’s top conservative legal minds, from Supreme Court nominee Robert Bork to future Supreme Court Justice Antonin Scalia. Steven Calabresi, a founding member from Yale who would later go on to chair the board, put it best when he said, “Part of Reagan’s policy was to build up forces in battleground nations in order to topple enemy regimes, and I thought of us as kind of the same equivalent in law schools.”

Soon, the organization grew to include at least 75 campus affiliates, rich benefactors, and a headquarters in Washington, D.C. Its leaders knew they needed a cause to rally around, an idea that would drive their work. They landed on abortion, finding that opponents of Roe v. Wade were likely to be on board with the entirety of their agenda. Restricting abortion access was also an issue with which they lacked popular nationwide support, meaning that stacking the judiciary with like-minded individuals was the only way they could repeal Roe. It was a perfect litmus test of their strategy.

Former President Ronald Reagan helped give the organization life in its early years by hiring many of its members as part of his administration, helping them gain experience and power. Other members found jobs working within the Republican Party’s infrastructure and its network of interest groups and PACs. In 1986, when Chief Justice Warren Burger announced his retirement, Reagan nominated Antonin Scalia to the court.

Then, in 1987, Justice Lewis Powell announced his retirement. Reagan announced that he would nominate Robert Bork. Democrats launched an all out assault against Bork’s nomination, even using some of the speeches he gave to the Federalist Society against him. That strategy proved effective, and Bork’s nomination was ultimately withdrawn, with Anthony Kennedy filling the vacancy in 1988. But Bork’s defeat was a seminal moment in the society’s history. The society failed to circumvent the need for popular support — something they’d end up preparing themselves for in case it happened again.

Over the next thirty years, the entire conservative legal movement would grow around the Federalist Society’s massive orbit. The American Center for Law and Justice (ACLJ) was created as a counterbalance to the American Civil Liberties Union (ACLU). A few years later, The Alliance Defending Freedom (ADF), an org dedicated to defending Christianity and its beliefs in the law, came into existence.

As these groups silently gained power and prominence, they found themselves fighting mainly against marriage equality, even in liberal bastions like California. In 2018, the ADF won Masterpiece Cakeshop v. Colorado Civil Rights Commission, commonly known as the ‘cake case’, in which the Supreme Court upheld a baker’s right to refuse to make a wedding cake for a gay couple on the grounds that it violated his religious freedom.

But successfully overturning Roe v. Wade with last year’s Dobbs decision, a goal of nearly 5 decades, best exemplifies the Federalist Society’s playbook, which includes:

  • A Conservative President: The election of Donald Trump in 2016 gave the Federalist Society a major seat at the table. After Marco Rubio questioned Trump’s loyalty to the conservative cause at a debate, the future president went on Sean Hannity’s show to reveal a list of names he would appoint to courts across the country. He explicitly named the Federalist Society as having helped create the list.
  • Allies, Allies, Allies: The Federalist Society has a vast network of allies, reaching every corner of politics. In 2016, when Justice Antonin Scalia died, the Federalist Society mobilized them all. First, Sen. Mitch McConnell — then serving as Senate majority leader — prevented Obama’s nominee, Merrick Garland, from getting even a single confirmation hearing. Then came a $7 million dollar ad campaign by interest groups that mobilized conservative voters around the cause of leaving the seat vacant. In March 2016, Trump met with Federalist Society executives to discuss names for Scalia’s replacement, should he win the White House. That list included Neil Gorsuch, who Trump later nominated to fill Scalia’s vacancy after his win over Hillary Clinton.
  • Money Talks: The Federalist Society runs an extremely effective fundraising operation that involves a deep web of nonprofits, PACs, and other groups. In 2016, a vice president at the Federalist Society, Leonard Leo, started three nonprofits. One of them, the BH Fund, received a $24 million donation from an anonymous donor. Some of that money was then given to a nonprofit called America Engaged that gave $1 million to the lobbying arm of the NRA, which then ran ads targeting senators who refused to confirm Neil Gorsuch.
  • Remember Robert Bork: After Reagan’s nominee was sunk by Democrats, the Federalist Society vowed never to let that happen again. The 2018 confirmation of Justice Brett Kavanaugh was the ultimate test. Trump’s second nominee came with a lot of baggage, including accusations of sexual assault from during college. Over two years, Freedom and Opportunity Fund, a conservative nonprofit, gave more than $4 million to Independent Women’s Voice, yet another nonprofit. When Kavanaugh’s allegations surfaced, Independent Women’s Voice’s President Tammy Bruce showed up all over Fox News defending Kavanaugh. While it’s unclear whether they knew about Kavanaugh’s allegations ahead of time, these right-wing groups sure did seem prepared to address them.

By the time Trump was out of office, there was nothing Biden or the Democrats could do. And by the time the Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization in 2021, the fate of abortion was all but sealed.

So what’s next? Well, that’s the scary part. As long as Roe was the law of the land, the Federalist Society had a north star to work toward. But today, it’s rudderless. Put simply, we don’t know what its next major legal project(s) will be, and that’s terrifying.

The Federalist Society’s commitment to originalism means following a document written nearly two and a half centuries ago when women had few rights by white, Christian men who enslaved people. To get a potential glimpse of where this movement might go in the years ahead, look no further than Justice Clarence Thomas’ concurring opinion to the Dobbs decision. In it, Thomas called for the re-evaluation of Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges — landmark decisions that furthered access to contraception, enshrined LGBTQIA+ privacies, and legalized same-sex marriage, respectively. Critics of this view say Justice Alito’s majority opinion in Dobbs goes out of its way to argue that this precedent applies solely to abortion, but does that really provide any solace?

Despite being upheld repeatedly for over 40 years, Roe v. Wade was overturned by three justices —Gorsuch, Kavanaugh, and Barrett —who all told the Senate in their confirmation hearings that they viewed Roe as a valid super-precedent.

Ultimately, the problem here is not with the overturning of precedents, conservative leanings, or the justices themselves. The issue is that the Federalist Society has power in Republican administrations and offices that are outside the purview of the people. When city councils, state legislatures, and both chambers of Congress pass laws that are seen as antithetical to popular opinion, voters at least have an avenue to respond, via the ballot box. But no citizen could even call for the ousting of the Federalist Society, because it’s an organization whose influence and counsel is deeply embedded in the American judiciary. It continues to be sought out by politicians, irrespective of the will of the people. All this to say, when the shark that is the Federalist Society goes hunting for its next meal, your vote, your voice, and your opposition will likely be no help in stopping it.

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