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.

Brett Kavanaugh Christine Blasey Ford

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.