The Federalist Society (FS) is the most successful activist group ever to shape, if not make, federal court decisions. How has that come about? Where did they come from? And what do they want? Before answering those questions, one must appreciate their immense presence in the federal court system.
Federalist Society judges could determine many, if not the majority, of decisions from the federal courts. Senator Sheldon Whitehouse says that nearly 90% of President Donald Trump’s appellate judges appointed to the Circuit Courts were members of the Federalist Society. That’s easy to believe, given that as a presidential candidate in 2016, he promised that his judicial nominees would “all [be] picked by the Federalist Society if he were elected president.”
Consequently, Trump appointed 53 judges to comprise just under a third of the federal appellate judges. Previously about half of Bush’s appointments to those courts went to FS members. That’s no surprise because the George H.W. Bush administration gave responsibility for judicial selection in the White House Counsel’s office to Lee Liberman Otis, a founder of FS.
At the entry-level of federal courts, Trump has appointed about a quarter of district court judges. However, he delivered for the Federalist Society by selecting three members to the Supreme Court to join the three members already on it. Then you must add the Federal Society judges that remain on the SCOTUS appointed by George H.W. Bush and Ronald Reagan — giving FS effective control over that court’s decisions. The six FS Justices, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Amy Coney Barrett, now represent all the Republican appointees on SCOTUS.
Having vertical consistency of very conservative decisions rising from a district court to the circuit court and then to the Supreme Court could allow society members to reject prior court decisions that have been accepted for decades. I describe how an FS district judge, backed up by an FS-dominated circuit court, recently rejected the FDA’s twenty-year prior approval of an abortion pill used as a safe drug across five presidential administrations.
What is the Federalist Society? So, what is this society that is altering our society in a legal manner and not through rioting in the streets? Founded in 1982, the Federalist Society focused on spreading conservative ideas in law schools, hoping their members would someday deconstruct the liberal-dominated legal system.
The Society was not the first university-based organization to help law students understand and promote a political philosophy. As a former Mother Jones political blogger, Kevin Drum, wrote, hundreds of groups coalesced around the concept and practice of public interest law before the Society was formed.
That liberal movement started in the 1950s when groups began aggressively fighting for civil rights causes in the Supreme Court. According to Drum, “New Deal liberals took over law schools, professionalized them, and started churning out thousands of young lawyers steeped in a liberal understanding of the law.” Then, in the 1960s, public interest law exploded. In 1971 Ralph Nader started Public Citizen, and hundreds of similar groups were formed.
However, while they focused on issues like fighting for the constitutional rights of women, minorities, workers, unions, and consumers, they did not have a singular organization that worked to get their members appointed to the courts. Instead, they were going to the courts to win cases. Meanwhile, some of their members became law professors, politicians, and judges with similar liberal views.
But unlike the FS, they did not have a game plan or the funds available for taking control of the courts. The furthest right-wing Republicans were disappointed in Republican-appointed judges who approved laws like desegregating public schools and allowing abortions. Two professors analyzed how Republicans, in line with the beliefs of the Federalist Society, led to the rise of a conservative legal network of judges steeped in what could be labeled a reactionary philosophy.
Comparing the Federalist Society to its closest liberal twin organization. Thirty years after the Federalist Society was founded, the American Constitution Society (ACS) was created in 2001. Perhaps due to their head start, Drum notes that the Federalist Society “has more student chapters, more than twice as many lawyer chapters, and a huge fundraising edge.” However, comparing their membership size, revenues, and donors is like a fight between a tiger and a lone wolf over a bit of meat.
Membership in ACS amounts to over 200 student and lawyer chapters representing almost every state and on most law school campuses. Meanwhile, FS has chapters at each of the 196 ABA-accredited law schools across the country and 24 chapters at international law schools. In addition, ABA-accredited satellite campuses, non-accredited law schools, and undergraduate campuses harbor FS chapters. Finally, separate from the school chapters, there are more than 100 metropolitan lawyer chapters and 15 nationwide practice groups.
Unfortunately, while ACS lists chapters, its website does not provide membership numbers. For example, the Federalist Society claims 60,000 professional legal members, and Sen. Whitehouse believes they have an additional 10,000 law student members.
The annual revenue for FS in 2020 was $20 million, with assets of $32 million. From 2015 through 2020, the ACS’s yearly revenue fluctuated between $4.5 million and $8.2 million. There is no separate accounting for their assets, but if the ratio of revenue to assets holds for both organizations, ACSs would be about a third of FS’s.
But these metrics don’t begin to tap the underlying explanation of why FS has significantly influenced the federal court system to its liking. As the adage goes, follow the money.
Frightening rundown, Nick. I put this conservative wave of FS-back judges directly at the feet of Hillary Clinton’s arrogant campaign ‘advisers’ that back-doored Sanders (alienating his supporters), ignored key rust states they considered in their ‘pocket’ and maintained wildly incompetent web/email security.
The appointment of judges should never fall prey to the political or ideological spoils system! Judges are officers of the court and, as such, necessarily need to follow the law. To that end, the Federalist Society is intellectually coherent and consistent. If it’s political activism you seek, then perverting the court system is not an appropriate avenue.
Textbook case of projection.
The official name of the organization is The Federalist Society for Law and Public Policy Studies. Its website provides interesting information, a useful supplement to Mr. Licata’s post. Its meetings are open to the public; there is a chapter in Seattle.
The following statements, in quotation marks, are taken directly from the Purpose section of the website of The Federalist Society. I present them fairly, with no intention of bias.
A statement in the Purpose asserts “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.” The Federalist Society is a “group of conservatives and libertarians” . . . “founded on the principles that the state exists to preserve freedom,” . . . “separation of governmental powers is central to our Constitution,” . . . and “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” . . . (The purposes of the Society) “include reordering the priorities within the legal system to place a premium on individual liberty, traditional values and the rule of law.”
The FAQ section begins with this statement: “. . . main purpose (of the Society) is to sponsor fair, serious and open debate” . . . re: “role of the courts.”
There are many quotes from speakers with a variety of political and social views at Federalist Society events for your perusal if you visit the website.
The rise of the Federalist Society began long before Hillary Clinton’s arrogant campaign ‘advisers’ laid the groundwork for her defeat at the polls. However, she did win the popular vote.
The Federalist Society’s website and published papers are intellectually coherent and consistent in promoting an open-market economy and shrinking government regulations over businesses.
However, why do SF libertarians support the government restricting the freedom of individual citizens? Williams notes that the purposes of the Society “include reordering the priorities within the legal system to place a premium on individual liberty, traditional values and the rule of law.” “Traditional values” in the past have justified the practices of slavery and child labor. And in current times to outlaw abortions.
Communities preserving their traditional values may be fine. But should a particular moral code be used by judges as a tool for converting the secular court system into a moral tribunal?
The latest example is Texas Federal District Judge Matthew J. Kacsmaryk’s decision to ban prescribing and distributing the abortion pill mifepristone as unsafe. His scientific data was minimal compared to what has held up for two decades. The Circuit Court’s two SF judges also restricted the use of the pill in their decision based on thin science data.
The Trump administration promoted lawyers like these onto federal judgeships based on their approval by SF. Nothing illegal here. But it undermines the rule of law with a moral code reflecting one group’s beliefs above others.
Bravo, Nick…It cannot be repeated too often: Mifepristone has been prescribed by doctors and used by desperate women for more than 20 years, safely.
I’d suggest you re-read the middle paragraph in Carolyn Wallace’s comment. Notably; “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.” And; “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” This is clearly a separation of powers statement, making plain that the FS see ‘what the law should be’ as the province of legislatures and ultimately, the citizens. You seem concerned that the FS wants to get away from Prosecutors and Judges who want to ‘interpret’ the laws to fit their liberal ideology. You ask: “should a particular moral code be used by judges as a tool for converting the secular court system into a moral tribunal?” Clearly, the FS was formed to combat this very thing. You seem to simply prefer liberal morality dominating our court system vs chasing this bias out.
You ask why “SF libertarians support the government restricting the freedom of individual citizens”.? They do not. That’s the Progressive Liberals who are all about that. Look at the pandemic. Governors like Inslee, Brown and Newsome slapped on mandates, closed schools, killed small businesses, and fired state employees who wouldn’t comply with their edicts. Conservative Governors like DeSantis and Abbott let the people decide what they thought was best for themselves. Mask wearing was up to the individual, not the Governor. There was no rush to restrict the freedom of individual citizens by them. No school closures, no eviscerating the business community by effectively shutting everyone down, no firing state employees (who were sorely needed folks), -no acting like an Emperor.
The FS does place a premium on individual liberty, traditional values and the rule of law, but I seriously doubt they define traditional values as you suggest they do. You might have looked up a definition of Traditional Values; ‘values held to be traditionally taught or reinforced within a family, such as those of high moral standards and discipline’. You know, responsibility, accountability, honesty, hard work, fair play. -The Code of the West. Not as you suggest; to allow slavery and child labor, which, like abortion, don’t neatly cut across party lines anyway. Despite Democrat efforts to position Republicans as entirely against abortion, plenty of conservatives are pro-choice, and plenty of liberals are pro-life (like Catholics, for example). What’s apparent is you don’t like majority rule, which is what we now have state-by-state since the issue was returned to the voters vs 9 guys in black robes deciding for everybody. I may be pro-choice but I do understand that half of the country doesn’t agree with me and thinks this is murder. And, I respect their opinion and right to think differently. When they are in the majority, as they are in Texas, the policy that follows should reflect their majority. And, their Judges should follow and enforce the laws they make. -Just like in Washington State.
You express concern about; “undermining the rule of law with a moral code reflecting one group’s beliefs above others’. Progressive Liberals love to talk about the rule of law, but they are the crowd who’s moral code is typically lax on enforcing our laws, or they simply ignore them altogether. See: the Seattle City Council and Prosecuting Attorney’s in Seattle and King County for the past decade, -and the results. The ‘Summer of Love’ certainly wasn’t following the rule of law, and ignoring our laws in favor of a moral code of liberal ideology cost the effected businesses a ton of $ and the rest of us an excellent Police Chief and the lives of 2 young men.
Half the country believes abortion equals murder? Not quite.
Recent Pew poll says …” Today, a 61% majority of U.S. adults say abortion should be legal in all or most cases, while 37% think abortion should be illegal in all or most cases.” (Pew Research Center).
And, a Gallop poll from May of 2022 says that 35% of Americans think abortion should be legal under any circumstances and 50% think it should be legal under some circumstances. Part of the issue is defining ‘abortion’. Many who are ok with an early abortion aren’t ok with it in the second or third trimester. Etc. We can quibble about statistics and definitions but the real point is that this issue has large segments of our population on each side. It’s not a small minority who are against it, and it’s further complicated by the fact that those against it see it as the taking of a life. This makes passage of a national law, either way, nigh near impossible and points up the error of our Supreme Court in legislating this issue in the first place. How would you have felt if the Court had outlawed abortion in Roe, thereby disenfranchising all those who are pro-choice? That’s exactly what they did to the pro-life side and it’s why they ultimately returned it to the States.