As a proud member of the Liberal Geezerhood, I have lowered my imaginary flag to half-mast in the melancholic recognition that, for the rest of my life, America’s federal judiciary will be in the hands of a right-wing cabal. The Supreme Court is on the cusp of having a rock solid conservative majority, which based on actuarial tables, will keep growing long before it dissipates. Two appellate circuits have already flipped to the right, and another two are on the verge of doing so.
Yet, as a life-long student of the political process, I can’t help being impressed with the skill, chutzpah and dogged determination behind a quiet, 36-year revolution that very few of us saw coming – until it was too late. When it comes to effective organizing principles, this amazing coup d’état could teach the left a thing or two.
We baby boomers grew up taking for granted that the role of the Supreme Court was to give life to the Constitution’s noble-but-ambiguous aspirations, core values like “equal protection”, “due process”, and “right to counsel”. Through those principles, we saw the court put an end to school desegregation, allow women to have access to contraceptives and abortion, require states to provide attorneys for low-income criminal defendants and prohibit police interrogations without advising suspects of their right to remain silent.
Meanwhile, a handful of ultra conservative lawyers and law students stewed quietly over what they saw as an overly activist judiciary and a liberal bent in most law schools. In 1982, that angst gave rise to something called the Federalist Society for Law and Public Policy Studies, a name far more elegant than either its origins or mission warrant. According to most histories of what is now known simply as the Federalist Society, the germination began with small chapters of disaffected and extremely conservative law students at Yale, Harvard and the University of Chicago. They felt disenfranchised by what they saw as an overly liberal legal profession and gathered together to share in that bond. With the help of some of the right’s most well-known attorneys, including Edwin Meese and Robert Bork, the movement quietly evolved into a pipeline aimed at mainstreaming conservative legal thought and producing an army of Federalist Society judges that could turn American jurisprudence on its head.
Today, the Federalist Society has 70,000 members, chapters at more than 200 law schools and over $25 million in net assets. Their patron saint is the late Justice Anton Scalia, revered by the society for his “originalist” approach to interpreting the Constitution. Once an outlier in judicial thought, originalism endeavors to freeze the Constitution at whatever strictly constructed meaning it had back in 1787. Since the founders back then were not thinking about things like abortion, racial segregation or gay marriage, then today’s courts should stay clear of all such current controversies. Or so the Federalist Society believes.
The truth, however, is that originalism is a cheap intellectual illusion intended to mask the brazen political goals of right-wing ideologues. After all, it was Scalia himself who, in a landmark gun rights case, found a private right to own a pistol in Second Amendment language that speaks of bearing arms in the context of a “well-regulated militia”. A credible argument perhaps, but one that stabs a dagger through the heart of originalist purism.
Here’s how fast the Federalist Society and originalism have evolved: When George W. Bush nominated now Supreme Court Chief Justice John Roberts, the White House insisted that the nominee “was not now and never has been” a member of the Federalist Society. It was as if mere association with this group posed a threat to his confirmation. Roberts is now proudly out of the closet as a card-carrying Federalist, along with his fellow society brethren Samuel Alito, Clarence Thomas and Neil Gorsuch.
If you are counting, that makes four Federalist Society members on the nine-member court. Number five is just a Senate vote away. Brett Kavanaugh has been a Federalist activist for more than 20 years. In fact, when he worked for Bush, he was the one who persuaded his boss to nominate the then-closeted John Roberts. That is precisely how this once obscure organization works. It jams an extensive pipeline with well-groomed right-wing thinkers and sends them through a labyrinth of channels, from clerkships to partnerships to judgeships.
How did all that happen? Enter Leonard Leo, a quiet, far right ideologue and a brilliant organizer. Leo is a member of the secretive, reactionary Knights of Malta, a Catholic order founded in the 12th Century that is to the extreme right of the Vatican. According to close associates, Leo declared 20 years ago that conservatives had lost the culture wars – abortion, gay rights, contraception and diversity. He said the only solution was to “stack the courts”. He signed on with the Federalist Society as its fulltime paid operative and the stacking was quickly underway.
Roberts and Alito – and a couple of circuit appellate judges – were big wins for Leo during the George W. Bush years. But the floodgates opened wide for him when he joined forces with one of the most ideologically impure politicians in American political history. According to the New York Times, Leo repeatedly refused to meet with candidate Donald Trump in 2015 and early 2016. Eventually, however, he was persuaded to take a meeting. To Leo’s astonishment, Trump told him to come up with a list of Supreme Court candidates, and that he would publicly promise to fill the Scalia vacancy from that list. Months later, Neil Gorsuch moved from Leo’s list to the United States Supreme Court, soon to be followed by Brett Kavanaugh. Court watchers have estimated that by the end of the year, 26 percent of the federal appellate bench will have come through the Federalist Society pipeline. How amazing. How frightening. The selection of lifetime judgeships has been subcontracted to an outfit that the last Republican administration disavowed as too dark and shadowy.
Sadly, at this moment, there is nothing for liberals to do but grit our teeth and shake our heads. We have been outmaneuvered by a skilled right-wing court stacker. As the moment passes, however, we need to learn from him. We need to build our own pipeline of brilliant young lawyers willing to don judicial robes and apply the constitutional values and principles set forth by the founders to our current lives. Yes, it’s enormously sad to see the death of the judicial thinking we grew up with. But, as the late, great Joe Hill said in a different context, “Don’t mourn, organize.”