The Federalist Society (FS) is the most successful activist group to shape, if not make, federal court decisions. How has that come about? Where did they come from? And what do they want? Before answering those questions, one must appreciate their immense presence in the federal court system.
Federalist Society judges could determine many, if not the majority, of decisions from the federal courts.
Senator Sheldon Whitehouse says that nearly 90% of President Donald Trump’s appellate judges appointed to the Circuit Courts were members of the Federalist Society. That’s easy to believe, given that as a presidential candidate in 2016, he promised that his judicial nominees would “all [be] picked by the Federalist Society if he were elected president.”
Consequently, Trump appointed 53 judges to comprise just under a third of the federal appellate judges. Previously about half of Bush’s appointments to those courts went to society members. That’s no surprise because the George H.W. Bush administration gave responsibility for judicial vetting in the White House Counsel’s office to Lee Liberman Otis, a founder of FS.
At the entry-level of federal courts, Trump has appointed about a quarter of district court judges. However, he delivered for the Federalist Society by choosing three members for the Supreme Court to join the three members already on it. Then you must add the Federal Society judges that remain on the SCOTUS appointed by George H.W. Bush and Ronald Reagan, giving FS effective control over that court’s decisions. The six SF Justices, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Amy Coney Barrett, now represent all the Republican appointees on SCOTUS.
Having vertical consistency of very conservative decisions rising from a district court to the circuit court and then to the Supreme Court could allow society members to reject prior court decisions that have been accepted for decades. I describe how an SF district judge, backed up by an SF-dominated circuit court, recently rejected the FDA’s twenty-year prior approval of an abortion pill used as a safe drug across five presidential administrations.
What is the Federalist Society?
So, what is this society that is altering our society in a legal manner and not through rioting in the streets? Founded in 1982, the Federalist Society focused on spreading conservative ideas in law schools, hoping their members would someday deconstruct the liberal-dominated legal system.
The Society was not the first university-based organization to help law students understand and promote a political philosophy. As a former Mother Jones political blogger, Kevin Drum, wrote, hundreds of groups coalesced around the concept and practice of public interest law before the Society was formed.
That liberal movement started in the 50s when groups began aggressively fighting for civil rights causes in the Supreme Court. According to Drum, “New Deal liberals took over law schools, professionalized them, and started churning out thousands of young lawyers steeped in a liberal understanding of the law.” Then, in the 60s, public interest law exploded. In 1971 Ralph Nader started Public Citizen, and hundreds of similar groups were formed.
However, while they focused on issues like fighting for the constitutional rights of women, minorities, workers, unions, and consumers, they did not have a singular organization that worked to get their members appointed to the courts. Instead, they were going to the courts to win cases.
Meanwhile, some of their members became law professors, politicians, and judges with similar liberal views.
But unlike the Society, they did not have a game plan or the funds available for taking control of the courts. The furthest right-wing Republicans were disappointed in Republican-appointed judges who approved laws like desegregating public schools and allowing abortions. Two professors analyzed how Republicans, in line with the beliefs of the Federalist Society, led to the rise of a conservative legal network of judges steeped in what could be labeled a reactionary philosophy.
Comparing the Federalist Society to its closest liberal twin organization
Thirty years after the Federalist Society was founded, the American Constitution Society (ACS) was created in 2001. Perhaps due to their head start, Drum notes that the Federalist Society “has more student chapters, more than twice as many lawyer chapters, and a huge fundraising edge.” However, comparing their membership size, revenues, and donors is like a fight between a tiger and a lone wolf over a bit of meat.
Membership in ACS amounts to over 200 student and lawyer chapters in almost every state and on most law school campuses. Meanwhile, FS has chapters at each of the 196 ABA-accredited law schools across the country and 24 chapters at international law schools. In addition, ABA-accredited satellite campuses, non-accredited law schools, and undergraduate campuses harbor SF chapters. Finally, separate from the school chapters, there are over 100 metropolitan lawyer chapters and 15 nationwide practice groups.
Unfortunately, while ACS lists chapters, its website does not provide membership numbers. For example, the Federalist Society claims 60,000 professional legal members, and Sen. Whitehouse believes they have an additional 10,000 law student members.
The annual revenue for FS in 2020 was $20 million, with assets of $32 million. From 2015 through 2020, the ACS’s yearly revenue fluctuated between $4.5 million and $8.2 million. There is no separate accounting for their assets, but if the ratio of revenue to assets holds for both organizations, ACSs would be about a third of FS’s.
But these metrics don’t begin to tap the underlying explanation of why FS has significantly influenced the federal court system to its liking. As the adage goes, follow the money.
Federal judgeships have become a valuable commodity on the political market.
Sen Whitehouse has given over nine speeches on the Senate floor accusing FS of being funded by right-wing anonymous donors’ intent to capture federal courts for their interests. His accusation rests on recognizing that the Federal Society pursues three different complimentary strategies through three separate functions. However, they share the same ideological goals, financial resources, and membership.
At its membership base, FS Whitehouse sees “a debating society of like-minded aspiring lawyers drawn to conservative ideas and judicial doctrine. They organize seminars and invite academics, judges, and attorneys to speak.”
The next level of activity is a think tank entity that issues newsletters produces podcasts, and policy recommendations. They hope to “reorder priorities within the legal system” and create a network of members that “extends to all levels of the legal community.” They equate less central government and an open market economy with having more freedom.
Both functions operate within the spirit of maintaining a democratic dialogue. Of course, one may strongly disagree with their conservative ideas and fear they would destroy democracy. But someone could also fear a liberal organization doing the same activities.
However, Whitehouse sees a third Federalist Society that understands how much political power the federal judiciary wields. And it could be wielding legal rulings to benefit the financial interests of their donors. Whitehouse refers to the special interests as FS’s donor interests. Since there are many donors, their interests must be coordinated to be effective.
Whitehouse and a host of journalists identify Leonard Leo, the FS’s past executive vice president and currently its co-chair, as the most influential person shaping our federal judiciary by coordinating those donors' interests. According to Whitehouse, “it was Leo who delivered the list of potential nominees to fill the vacancy left by the death of Antonin Scalia and the blocking of Merrick Garland” to be appointed to SCOTUS. Neil Gorsuch was one of his FS picks for Trump to nominate to the Supreme Court.
Whitehouse points out that the Federalist Society is funded by massive, secret contributions from corporate right-wing groups with big agendas before the courts. Their contributions pushed for the appointment of judges who, before being appointed to a court, had publicly argued for the need to trim or eliminate much of government regulation of the marketplace. This approach ignores the effect of accumulating and concentrating wealth on people and businesses that dominate the marketplace.
Just accumulating wealth is not destructive to a democratic society. However, when court decisions denigrate the quality of life for most citizens, then our democratic society begins to fracture between the haves and not-haves. It led to the rise of conflicts and, as some would say, “class conflict” or populist insurrections.
The creation of the Federalist Society grew from a recognition that it was necessary to educate new lawyers on the need to overturn the established rationale of liberal judges to protect the welfare of all citizens at the expense of businesses. Supreme Court Justice Lewis Powell sparked that recognition.
Before he sat on the Supreme Court, Powell sent a memorandum to the US Chamber of Commerce in the early 70s, framing corporate America's concerns as the concerns of individual freedom. In Democracy in Chains, Nancy MacLean writes how Powell’s memo argued that “the American economic system is under broad attack,” pointing to environmentalism and the rise of pro-consumer litigation. But, most importantly, he urged businesses to aggressively protect their interests in the courts since they are “the most important instrument for social, economic, and political change.”
The Federal Society became the instrument for the business interests to promote that political change. In addition, it fostered an anti-government regulation philosophy among new attorneys, encouraging them to seek judgeships. Federalist Society’s activism works through a network of conservative donor organizations that Leonard Leo helped create. According to Politico, in 2022, Leo obtained a historic $1.6 billion gift for his traditional legal network of non-profits, made possible by his leading role in the Federalist Society.
Leo’s network funds political media campaigns that indirectly help politicians support FS candidates for federal court positions, including SCOTUS. According to the New York Times, between mid-2015 and 2022, Leo’s network spent nearly $504 million on policy and political fights, including grants to about 150 allied groups.
Federal Society's financial and political success in shaping federal court decisions rests has resulted from harnessing conservative ideals to promote the monetary interests of businesses which in turn fund expanding the influence of FS. The counterweight to this effort must be to preserve the liberal basis of our legal system that has protected public welfare economically and socially from being sacrificed on the open market.
Nick Licata is the author of Becoming A Citizen Activist and Student Power, Democracy and Revolution in the Sixties. He is the founding board chair of Local Progress, a national network of over 1,300 progressive municipal officials.