Case Study: The Federalist Society and the Supreme Court

Supreme Court Justices with Federalist Society ties: (clockwise from upper left) Samuel Alito, Clarence Thomas, Brett Kavanaugh, John Roberts, Neil Gorsuch, and Amy Coney Barrett.

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

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.

David Montgomery, writing in The Washington Post Magazine, said that each individual member of the group is "akin to an excited synapse in a sprawling hive mind with no one actually in charge." Montgomery called the Federalist Society "a remarkably successful example of what political scientists call a 'political epistemic community'," echoing Amanda Hollis-Brusky, who described the Federalist Society as "an interconnected network of experts with policy-relevant knowledge who share certain beliefs and work to actively transmit and translate those beliefs into policy

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. A devout Catholic, Leo said he is driven by his faith and a literal interpretation of the Constitution. He also defended the practice of taking money from donors whose identities are not publicly disclosed, comparing his effort to shape the courts to those of abolitionists, suffragists and civil rights activists.

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”.