The Rise of Federalist Society Judges

In the 1970’s and early 1980’s, in the wake of Warren and early Burger Court decisions such as Roe v. Wade and Miranda v. Arizona, conservative judges, officials, and pundits criticized the Supreme Court for acting like legislators. These “activist liberal judges,” in their view, were basing their decisions on the justices’ modern values, not the Constitution’s original intent. The result, critics charged, was that the Supreme Court usurped the role of the legislature.

One response to this concern was the formation of the Federalist Society in 1982 by conservative law students at Yale and the University of Chicago. Antonin Scalia was the faculty adviser at Chicago. The society spread to other law schools and subsequently reached out to conservative and libertarian lawyers across America.

The society evolved into a networking group, where ambitious conservative lawyers could socialize with establishment conservatives, get sized up, and hopefully be judged a safe choice for judicial and other appointments. The extent of its growing influence in Republican administrations is reflected in President Trump’s decision to propose judges from a list prepared by the Society (along with the Heritage Foundation).

Leonard Leo, executive vice president of the Federalist Society summed up the what the society is looking for:

It’s about interpreting the Constitution as it’s written and basically interpreting the limits on government power because that’s really the way to preserve human dignity in our country.

After joining the Supreme Court, Scalia became the best-known advocate of “textual originalism,” in which judges would “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” (Reading Law: The Interpretation of Legal Texts, 2012, by Scalia and Bryan A. Garner])

He claimed that originalism is an “objective” interpretive methodology, in which ideology plays no role. In practice, however, this claim suffers from several weaknesses. One is that it is not possible to quiz the author of a constitutional provision as to what it means, particularly under new circumstances. Thus, any conclusion as to what it means will likely reflect the biases of the person searching for meaning.

Scalia’s interpretation of the 2nd Amendment in Heller vs District of Columbia is probably his most well-known decision. The amendment is admirably succinct: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Heller case revolved around the question of whether the amendment covered guns kept for self-protection. Scalia concluded that it did. Whether or not one considers Scalia’s reasoning as compelling is likely to depend on whether or not one considers more guns a good thing. A gun skeptic is likely to conclude that Scalia’s analysis is driven by his desired conclusion.

For example, he dismisses the import of the first half of the amendment, the reference to the well regulated militia. To throw away half the words in the amendment is an unpropitious start for a project aimed at interpreting the Constitution strictly as written.

Much of the remainder of the decision is devoted to playing amateur historian. Scalia seems to be completely unaware of the danger of this exercise—that his bias would influence what makes the cut.

After brief popularity in the early 1980’s, charges of liberal judicial activism have become rarer. Conservatives, having drunk of conservative judicial activism, found it was a stimulant they couldn’t resist. Instead they concentrated on assuring the courts were filled with 40 or 50-year-old ideologues who would be around for years even if election results turned out the wrong way.

An article from 2014 How Activist Judges Undermine the Constitution: Checks and balances are an essential part of the American system—but so too is respect for Congress in interpreting laws reflects the shift. The author was Norm Ornstein, a prominent political scientist concerned about the growing dysfunction of Congress. His prime example was the Halbig cases, an effort by conservative judges to kill or at least hobble the Affordable Care Act by taking advantage of a drafting error.

Brett Kavanaugh, Trump’s nominee for Supreme Court, comes pre-approved by the Federalist Society. If he follows the script, at his nomination hearing he will refuse to answer most questions about his thinking on most issues. The rationale for this refusal is that these issues may come before the court and the parties deserve an open-minded judge.

Yet the reason he made Trump’s list is that the two groups have confidence they know his stance on most issues and are confident that he will not be swayed by any evidence. In other words, his mind is closed. Thus, if open-mindedness is a requirement for Supreme Court justices, Kavanaugh is not qualified—and neither are the others who made the list.

Although five of the seven Wisconsin Supreme Court justices are conservative, two recent arrivals are particularly associated with the Federalist Society and other right-wing organizations. Daniel Kelly is a member of The Federalist Society and the Wisconsin Institute for Law and Liberty (WILL), among others.

Rebecca Bradley served as president of the Milwaukee Federalist Society chapter and participated in the Thomas More Society and the Republican National Lawyers Association. When applying for judicial appointments, she listed four references including Kelly, Rick Esenberg the head of WILL, and Justice Annette Ziegler. The connections start to look pretty cozy.

The late Justice Scalia is often listed by Federalist Society members as their most admired justice. It is generally agreed, however, that he was less influential than he might have been because he couldn’t resist belittling his colleagues for disagreeing with him.

Kelly seems to have picked up that habit. Here is what he says about Ann Walsh Bradley’s dissent to his decision on Marquette’s discipline of a faculty member for publicly attacking a graduate student:

Much of the dissent, if not most, comprises a fetchingly poetic ode to the importance of the University’s academic freedom in immanentizing its mission. The problem with odes, however, is that their poetry so often comes at the expense of precision.

(For those unfamiliar with right wing jargon, “immanentizing the eschaton” was popularized by William Buckley and means trying to bring utopia to the here and now.) Kelly goes on:

Operationalizing the dissent’s ode would have disastrous consequences for academic freedom. The outward-facing protection against governmental interference would turn inward, pitting the institution’s academic freedom against the faculty’s academic freedom.

I find it hard to find anything in Ann Walsh Bradley’s dissent that would justify Kelly’s attack. Instead, she gets to the heart of problem with the majority’s decision:

Apparently, the majority thinks it is in a better position to address concerns of academic freedom than a group of tenured faculty members who live the doctrine every day.

Because Marquette has adopted a definition of academic freedom and uniform procedures that have been embraced by many other colleges and universities, the decision is far reaching. The majority’s decision to so readily discard institutional academic freedom and to disrespect part of the time-honored and bargained-for shared governance procedures will reverberate throughout this state.

Rebecca Bradley starts her concurrence with this overheated rhetoric aimed at a recasting an effort to discipline a professor for publicly attacking a student into a test of academic freedom:

In this unprecedented dispute between a university and a professor, academic freedom was put on trial. Would the sacred “right of faculty members to speak as citizens——that is, ‘to address the larger community with regard to any matter of social, political, economic or other interest without institutional discipline or restraint'”——succumb to the dominant academic culture of micro-aggressions, trigger warnings and safe spaces that seeks to silence unpopular speech by deceptively recasting it as violence? In this battle, only one could prevail, for academic freedom cannot coexist with Orwellian speech police.

Justices write concurrences when they cannot get a majority of their colleagues to join them. Bradley’s rhetoric, in short, was probably too much even for her fellow conservatives, Justices Patience Roggensack and Michael Gableman.

The end result of an overtly ideological court is that justices lose sight of other values, such as legal ethics. In a case called Koschkee v. Evers, the Wisconsin Department of Justice (DOJ) insisted that it should represent Education Secretary Tony Evers and the Wisconsin Department of Public Instruction even though it disagreed with Evers’ position. The resulting conflict of interest is would have put the DOJ attorneys in violation of legal ethics.

Somehow Rebecca Bradley (with the support of Justices Gableman and Kelly) did not see the problem with this. Perhaps she should spend more time acquainting herself with the state and national codes of legal ethics and less watching Fox News.

At his hearing, Neil Gorsuch objected to the view that judges were “politicians in robes. Putting on a robe reminds us judges that it’s time to lose our egos and open our minds.” But if there was a significant chance that Gorsuch would open his mind, he would not have made Trump’s list.