Historically Speaking: Judicial Activism and the Federalist Society
By Will Bellaimey with Elizabeth Gracen:
Once again, I spent a little time with my friend Will Bellaimey to talk about American history in light of the current events in our complicated country. This was a conversation just days before the murder of George Floyd and the intense days of protests that have followed. I'm sure we'll get to that conversation soon, but for now, I had a few questions for Will about an article I read in The New York Times.
Elizabeth Gracen: So, Will, I was moving through my morning ritual the other day, sipping coffee and doing a quick sweep of the news, and I came upon an article in the NY Times that peeked my interest. It was all about opposition to Justin Walker from the U.S. District Court in Kentucky who was nominated and is now confirmed for a seat on the Court of Appeals for the District of Columbia. The ethics advisory arm of the federal judiciary had written a letter stating that nominees such as Justin Walker who were part of The Federalist Society or the liberal equivalent, the American Constitution Society, should not be considered for these court appointments. Then I read that the American Constitution Society and the American Bar Association seem to be in opposition to the Federalist Society as well. So, I went back to one of the first conversations that we had about Federalists and Anti-Federalists, and I got confused about what the Federalist Society actually is and if it has anything to do with Federalism in general. I mean, these judges are appointed for, not technically for life, but until they resign or —
Will Bellaimey: They are basically appointed for life.
EG: So that shapes the courts for a very long time. Trump has appointed so many judges. Mitch McConnell's goal has been to appoint as many judges as possible. I'm assuming that the Federalist Society is like an ultra-conservative think-tank?
WB: Well, the Federalist Society has been part of shifting our judiciary to a more conservative viewpoint for the last 40 years or so. Antonin Scalia—the late great Conservative Supreme Court justice—is probably best associated with the Federalist Society's viewpoint, which is a strict interpretation of the Constitution. Another term that's often used is originalism. And, in some ways, it is its own version of the conservative policy—which is to say limited rights in terms of abortion, limited access to affirmative action for minority groups, and also just limited federal government, in general, and more power to the States.
EG: And also opposition to gay marriage . . .
WB: Absolutely. And the easiest way to interpret it is probably just to say that it's a way of getting at those goals through constitutional means, but it also has its own intellectual pedagogy or background that says that you should only interpret the Constitution as the Founders themselves intended it to be written. So they would say the Constitution doesn't mention abortion anywhere, therefore it can't be in the Constitution. And actually what I just said is technically textualism, which is a related viewpoint, which Clarence Thomas ascribes to, but Scalia would say the Founding Fathers didn't intend, originally, for abortion to be protected, therefore abortion can't be protected.
EG: But what about slavery? That was happening at the time.
WB: Yes. But they would say that the reason slavery ended is because we amended the Constitution. So they would say, if you want abortion to be a right, you just have to amend the Constitution. They're not saying abortion can never be a right; they're just saying under the Constitution, as it's written now, it's not.
EG: Like the Equal Rights Amendment?
WB: They got very close with the Equal Rights Amendment. I'm not an originalist, but I don't think that it's a crazy idea. I think it's a way to understand the Constitution that does make sense within its own context. It just leads to a set of policies that I don't support. And I also think it's not particularly flexible when it comes to all of the sorts of things that change over time. The Founding Fathers had no idea about so many things that have happened in modern society.
EG: So, let's talk about the opposing viewpoint?
WB: The opposing viewpoint, the more liberal viewpoint, would be associated with somebody like Ruth Bader Ginsburg, who believes in living constitutionalism, which says that the Constitution has a set of principles in it that can be applied as times change to different scenarios. So Ginsburg isn't saying that the Founding Fathers intended for there to be a right to an abortion in this country, but she would say the Founding Fathers intended for there to be limits on how the government can invade your privacy—in the way that they talked about search and seizures. So, therefore, in modern times when the government tells a woman what to do with her body, they're violating that baseline principle. And if you think of the Constitution as living and growing to follow those principles, then it doesn't need to be written in specifically.
So the Federalist Society grew out of a feeling, especially in the kind of backlash to the sixties and the Warren Court and a lot of the decisions that moved civil rights and abortion rights and those kinds of things forward. They developed this originalist viewpoint that became the test for whether a conservative president would put you on the courts. And different presidents have flirted with saying explicitly that they believe that you have to believe in this or that. George W. Bush appointed a lot of Federalist Society-type people to the bench, but he would say, "I don't have a litmus test." He would say, "I'm looking at their character as a person." Whereas Donald Trump, who was not particularly popular in either conservative intellectual circles or conservative evangelical circles, basically made a deal where he said, "If you put me in, I will only choose judges who fit this Federalist Society mold. In fact, I will basically let the Federalist Society pick my judges."
EG: And is he the first president who's allowed that?
WB: He's the first one who's been that specific, but I think it's just a more open version of the same thing that other Republican presidents have done in the past.
EG: McConnell is in there with a goal to appoint as many judges as possible.
WB: I think they understand that in the long term "chess" of governing, the judicial branch is the really important piece to control. Even if the Democrats take over the House and control the Senate and take over the presidency, if you have judges who are going to strike down laws, it's going to make it a lot harder to make massive change.
EG: I know I'm naive, but that's just makes my skin crawl. There's nothing an incoming president or a new Congress could do to change any of it?
WB: No. You can't. I mean, there's been talk about trying to impeach and remove Kavanaugh.
EG: Still? That's over, right?
WB: Well, you can impeach and remove anyone at any time, but I think it's highly unlikely. You can only impeach and remove someone for high crimes and misdemeanors. Regarding Kavanaugh, some people have argued that you could say that he lied in his confirmation hearing, and therefore you can remove him. But, no. In terms of your baseline question—he will be Trump's legacy, regardless. Even if they tore down the wall and reverse all of his executive orders and you put Obamacare back into place . . . you still have this. This is what Franklin Roosevelt faced in the 1930s when, after a whole series of very conservative Republican presidents, he came into office and all of his plans for the New Deal were being struck down by these judges. He suggested that they had packed the court and basically said that the Constitution didn't say that there can only be nine justices—so let's just add a bunch more justices, and then they'll overrule the conservative majority. And that has been talked about by Democrats again now.
EG: And what happened?
WB: At the time, his own party said that it was really going against the spirit of the Constitution. And so even if it would be technically legal to do it, they refused to support him. But people are frustrated now, and they've talked about doing the same thing. I don't think that would happen though. I think it's such a blatantly partisan move that I wouldn't necessarily put it past the Republicans, but I can't imagine the Democrats doing it. I actually don't think even the Republicans would do that. What they did with Merrick Garland was pretty messed up, but it wasn't quite on the same level of just adding more people to the Supreme Court.
EG: But the whole idea of judges in general being impartial and politics not being part of the judiciary—I know it's Pollyanna to think that it's not part of it, but, I mean, on paper, that's what it's supposed to be, correct? These judges go by the law, not by political influence.
WB: I think when you really look at what the Supreme Court does, it's complicated because the kinds of cases that get to the Supreme Court aren't the kinds of cases where it's a clear cut thing. When John Roberts did his confirmation hearings, he said that he thought the judges should be like umpires—they're calling balls and strikes, but they're not there to grab the bat and hit the ball. And everybody kind of liked that metaphor, because I guess we like sports. But the truth is that the kind of thing that happens at the Supreme Court is often like a ball that's right on the line. So there's no way to avoid having some perspective that shapes how you decide things. It's not like the Democratic-appointed judges are unbiased, and Republican judges are biased. They each have a different way of understanding the Constitution. And sometimes I think they go against their own stated viewpoint because they have partisan views. Like in the election between Bush v. Gore, the five Republican justices wrote an opinion where they said this opinion can never be used as a precedent for any other case. So, to me it was a pretty obvious sign that they were saying that they weren't really thinking about that particular decision in principled terms.
EG: So, you think these judges are more like politicians?
WB: In general, I'm not fully of the school of what we would call judicial realism—that says judges are just politicians in robes. I think judges are political, but I think their interests are different than those of someone running for office. And therefore I continue to believe that even with conservative justices, I have more trust in their integrity than I do in politicians. But as somebody who's a supporter of a woman's right to choose, of affirmative action, I'm certainly concerned at what I think the outcome will be of these judges being in place for the next generation.
EG: I'm very concerned as well—with this as with a lot of things. So, let's talk about the American Constitution Society.
WB: The American Constitution Society was basically founded to be the liberal version of the Federalist Society.
EG: Was it directly formed in opposition to the Federalist Society?
WB: I believe so. But it's never reached the level of prominence within Democratic party politics that the Federalist has. In part, because the brand of the Democratic party has been less tied to certain constitutional issues, such as overturning Roe v. Wade being such a big goal of the conservative movement.
EG: The American Bar Association is mentioned more times than the American Constitution Society. I didn't realize that they were in opposition to the Federalist Society—that they had given bad reports on many of the judge nominations, but that those judges were still appointed. It's almost like their word meant nothing. I'd always assumed that the American Bar Association was one of the highest endorsements you could get, but it sounds like it's not?
WB: I'm not really an expert in this kind of thing, but I think the ABA was supposed to testify to baseline professional integrity. They weren't supposed to testify to your political leanings.
EG: I read that the Republicans were saying that the ABA was liberal.
WB: That's part of what's been happening under Trump, right? A lot of baseline, existing institutions are viewed as part of the anti-Trump conspiracy. That's what the whole Deep State thing is about. So you don't have trust in your own FBI. You don't trust your own Justice Department. And, you know, there's plenty of reasons to doubt all sorts of existing institutions. But I think this has also been a calculated effort to discredit some of the institutions that have been seen as objective in the past, such as the media, too.
EG: Where did the idea of the Deep State originate?
WB: Well, how far back do you want to go?
EG: Well, how far back does it go?
WB: I associate the term Deep State with Turkey, where it's been used in relation to the rise of Erdogan, who is the now fairly authoritarian leader who came to power as a moderately Islamic leader in a country that had these really strict secular rules. There was a real movement within the military to basically shut him down. He started using this language of the Deep State as a way to suggest that the whole system was rigged against him. When I first heard Trump using that term, that was what it reminded me of.
But if it was my history class, I would tie this to Eisenhower and the idea of the military industrial complex, which was in the beginnings of the cold war. Eisenhower himself, a military man, came to view the U.S. government as having these ties with business that basically would continue between business, the military, and the intelligence services—that regardless of who was president, they were still in charge. In his farewell address, he said, "I want to warn all of you about the rise of this military industrial complex." And people who believe that JFK was then killed by the CIA, or at least that parts of the government knew what was going on—I think that question should be taken seriously. Though I don't claim to have an answer to that.
EG: That's a whole other interesting conversation, because I sense that you know a lot about it, read a lot about it.
WB: Oh, I've read a lot about it. I don't think we have a clear answer, but I think if it was in any other country, when somebody like that gets assassinated, you would assume that there was some political machinations behind it. And whether Lee Harvey Oswald was a random person who killed JFK or whether there was a whole complicated other conspiracy, I think it's clear that by the 1960s, there were people within the U.S. government powerful enough who could go against a president who they disagreed with. And many of those people grew out of the FBI and the CIA and those kinds of organizations who, under J. Edgar Hoover, had their own political agendas.
And also just the military itself. We have the most powerful military the world has ever seen. And in a lot of countries, when that happens, you get worried about a coup. We haven't been particularly worried about that here. I would say it comes out of a deep connection between the military and political leaders that respect certain boundaries. But Donald Trump comes to office and wants to tear down, not just many of the ways that the military has operated but also many of the ways that the state department has operated—like the whole system.
EG: But not based on any of his original ideas though, correct? He's basically said, "Here's what's left of my soul. Tell me what to do with it." I don't view him as intelligent, but maybe you do.
WB: I mean, I think there’s a good argument that he has narcissistic personality disorder, which means he literally can't view anything outside of himself. But I think he is also channeling a very American suspicion of concentrated power. There's a famous essay called "The Paranoid Style in American Politics," which says that there's this classic American feeling that any time power gets too concentrated, you should be afraid that there's some sort of conspiracy going on. And I think that's very popular, especially on the Internet where people can whip each other into a frenzy.
EG: Like Fox News. I never watch it, but I suspect that they spread a suspicion of governmental power.
WB: Yeah. Tune in. That's what Fox News does.
EG: That's all they do.
WB: And I think it's possible that elements of all these conspiracy theories are true, but I don't think it's just the result of Donald Trump at this moment in American history. He has certainly made people a lot more suspicious and paranoid and conspiratorial, but the Internet is so good for conspiracy theorists and is so good at making everyone question everything that it's just a golden age for conspiracy theories in general.
Will Bellaimey teaches U.S. Government and Politics at Flintridge Prep School outside Los Angeles where he is also the director of the Los Angeles Museum of Geography, which is staffed entirely by seventh graders. His podcast, All the Presidents, Man, is available here.