For Americans tearing their hair out about the imminent conservative super-majority on the United States Supreme Court, we have some pointed advice for you. Familiarize yourself with the work of the Federalist Society, a group comprising thousands of very conservative lawyers advocating a so-called “originalist” version of the Constitution, sanctifying private property rights at the expense of workers, consumers, the environment, social justice and the protection of individual rights.
When we published The Federalist Society: How Conservatives Took the Law Back from Liberals in 2013, we wrote that Federalist Society members uniquely understood “that the easiest way to change the law is to change the judges.” We added that, “They have been phenomenally successful in doing so.” Just seven years after our warning, that success has increased by an order of judicial magnitude. Judge Amy Coney Barrett’s inevitable confirmation will make a total of six Supreme Court justices who were hand-picked by the Federalist Society. This astonishing feat, along with hundreds more conservative appointments to the lower federal courts, should leave Americans worrying about what rights are in danger of being taken from them.
Despite their incessant complaining about the power that liberals supposedly wield, the Federalist Society and its conservative allies are now firmly “the Establishment” in the federal judiciary. In addition, from 2010 to 2019, the Society more than doubled its income to over $25 million per year, vastly expanded its programs and now sits comfortably on over $30 million in assets, per the group’s 2010 and 2019 annual reports. The group has lawyers’ chapters in every major city, student chapters in every accredited law school, holds thousands of educational programs each year, and has numerous special projects to monitor federal, state and local regulatory policies, the activities of state attorneys general, the selection of state judges, law school curriculum, and politics and policy on a global scale.
As soon as President Trump was inaugurated, the group’s leadership, most notably former Executive Vice President Leonard Leo, began to promote conservatives for the more than 100 lower federal court vacancies and the open Supreme Court seat wrestled from President Obama by Senate Republicans.
It will take a generation or more to reverse course, considering the relative youth of so many of the Federalist Society’s judicial choices. The time to start, however, is now.
It is imperative that Joe Biden and his advisers appreciate the urgency of remaking the federal bench. Neither Presidents Clinton nor Obama did so. While Obama faced historic obstruction from Senate Majority Leader Mitch McConnell and the GOP-controlled Senate, Democrats have simply not paid enough attention to selecting judges or convincing voters of the importance of the judiciary. In stark contrast, every Republican president since Ronald Reagan has made it a priority. It is long past time that Democrats heed the advice that former Attorney General Edwin Meese gave to Reagan: “One fact is clear and compelling. No President exercises any power more far-reaching, more likely to influence his legacy, than the selection of federal judges.”
If he wins, who should Biden appoint? The time for middle-of-the-road corporate lawyers, prosecutors, politicians and safe choices is over. Instead, a President Biden should choose civil rights lawyers, public defenders, ACLU staff lawyers, and attorneys and academics who have demonstrated a commitment to human rights, a living Constitution and the administration of justice. Biden’s administration should put on the bench lawyers like Pamela Karlan, the brilliant expert on voting rights at Stanford University who argued and won employment protections for LGBTQ workers in the Supreme Court this year. Or Bryan Stevenson, one of the foremost death penalty lawyers and social justice activists in the U.S. Or Dean Erwin Chemerinsky, perhaps the most renowned and erudite professor and lecturer on constitutional law in the country. The Republicans will oppose these nominees. It will take courage to make and defend such appointments. No matter. The next Democratic president will have to summon fortitude that his predecessors have lacked, with a vision of a judiciary that respects stare decisis and the hard-earned constitutional rights of so many who were for so long unseen.
If you are a liberal philanthropist, take a page out of the books of the Kochs and the Scaifes and the Mercers. Stop making small grants for individual projects that you insist must be successful in three years. Stop requiring your grantees to guarantee that every paper clip they use advances the goals of a narrow project. Instead, make large unrestricted grants that will allow social justice advocates to build their institutions and broadly advance their ideas. That is how the Federalist Society has become the preeminent force it is today.
In the legal arena, if you have progressive goals, support the National Lawyers Guild. If you’re more comfortable with a traditional liberal agenda, support the American Constitution Society. If you are willing to take a broader approach, support Black Lives Matter and the multitude of other social justice groups dedicated to advancing equal justice under law. Trust your money to experienced activists who will make good use of it and build institutions that can challenge the Federalist Society’s influence over law and public policy.
Finally, no matter who you are, recognize that the Supreme Court is not and will not be an arena for progressive change for quite some time, and that it may in fact strike down or narrow into oblivion individual rights, particularly in the arenas of LGBTQ rights and abortion. Liberals and progressives must take an active, popular approach, seeking to secure from state legislatures and state courts the rights and opportunities that the conservatives on the Supreme Court threaten to eliminate. You can’t just hire a lawyer to do this for you. It requires collective participation in all facets of our democratic system. After all, a citizenry committed to working together in the struggle for a more just society can obtain rewards, protections, and guarantees of liberty and justice far beyond what any nine people in black robes can.