The Federalist Society

In the early 70s, American conservatives were reeling from the countercultural revolution in the 60s and the removal of Richard Nixon from the Presidency. Prominent wealthy conservatives met and drafted a long term plan of action to return conservatives to power and influence in American politics and society. One action they took was to create the Federalist Society for Law and Public Policy Studies.

Our governmental system in the US has 3 branches; the Executive, the Legislative and the Judicial. The conservatives had always been involved in the struggle to control the Executive and Legislative branches. They decided that they needed to have more influence over the Judicial branch. Since the Marbury v. Madison Supreme Court decision in 1803, the Judicial branch has given itself the right to strike down laws which it considered to be unconstitutional although this power is not given to the Judicial branch in the Constitution. Thomas Jefferson was very upset by this and feared that it undermined the Constitution. In a way, this makes the Judicial branch more powerful than the other two branches of government.

The Federalist Society was started as a student organization in the Harvard Law School, Yale Law School and the University of Chicago Law School in 1982 by a group that included prominent conservatives such as Edwin Meese, Robert Bork, Theodore Olsen, David M. McIntosh and Steven Calabresi. The stated purpose of the organization was to “To promote the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” The real purpose was to seek reform of the American legal system to bring it into alignment with what they considered to be the correct “textualist and/or originalist interpretation of the US Constitution.” The Society promotes its view of the law through speaking events, lectures, conferences and other activities.

The problem with trying to pursue a strict textualist and/or originalist interpretation of the US Constitution is that there were fierce debates over the wording of the Constitution. The actual historical arguments over the Constitution are often ignored in favor of interpretations that favor the ideological goals of those who claim to be originalists.  In addition, there is much in the world view of the Founding Fathers that we understand poorly today if we understand it at all. Sometimes it can be very difficult to know exactly what the writers of the Constitution thought.

Today, the Federalist Society has a Student Division, a Layer Division and a Faculty Division to serve different segments of its membership. There are over 200 chapters in US Law Schools and over 10,000 law students. The Lawyers Division claims over 30,000 practicing attorneys as members with chapters in 60 cities. Current Supreme Court Justices Antonin Scalia, John G. Roberts and Samuel Alito are members. Over half of the current sitting judges of the US Judiciary are members of the Federalist Society.

The stated goals of the Federalist Society are admirable but the actual purpose of the Society is to fill the US Judiciary with members of a group with a specific ideological agenda that is often at odds with the stated purpose of the Society. And the far right agenda of the Society favors the powerful over the powerless, the rich over the poor and the selfish over the altruistic. These attitudes are undermining the justice and fairness of American society and are a threat to our democracy.