Conquerors of the Courts

It’s rush hour on a November evening in Washington’s busiest regional rail hub, but swarming commuters must yield to a much more potent tide. The Federalist Society has taken over the Main Hall of Union Station for its annual black-tie gala. The stone walls of the vast, vaulted concourse are bathed in pale red and blue, while larger-than-life white spotlight cameo silhouettes of James Madison’s head — the society’s trademark — crown the columns and glow on video screens. Two hundred and twenty sold-out tables, each set for 10, await the throng funneling through a block-long tent, where $200-a-plate tickets are checked; inside, exclamations of celebration and reunion echo and blend into a deafening roar.

Even when the crowd simmers down, it’s so hard to hear in the cavernous hall that the words of retiring Sen. Orrin Hatch of Utah — who is receiving an award — are mostly lost to history. “Whatever he’s saying, I’m sure it’s good,” says Lew Olowski, who, like me, has crept closer to try to hear. He was a human rights activist studying at Georgetown Law a decade ago when, he tells me, joining the Federalist Society expanded his mind to see both sides of issues. Now he’s general counsel for an organization helping poor pregnant women get a leg up and, not incidentally, keep their babies. His ears prick up at isolated morsels of Hatch’s talk: “… religious freedom … administrative state. …” “See what I mean?” Olowski says. “Music to my ears.”

There is much for this crowd to celebrate. The conservative and libertarian society for law and public policy studies has reached an unprecedented peak of power and influence. Brett Kavanaugh, whose membership in the society dates to his Yale Law School days, has just been elevated to the Supreme Court; he is the second of President Trump’s appointees, following Neil Gorsuch, another justice closely associated with the society. They join Justice Clarence Thomas (who said last spring he’s “been a part of the Federalist Society now since meeting with them … in the 1980s”), Chief Justice John Roberts (listed as a member in 1997-98) and Justice Samuel Alito (a periodic speaker at society events). The newly solidified conservative majority on the court will inevitably decide more cases in line with the society’s ideals — which include checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning. In practice, this could mean fewer regulations of the environment and health care, more businesses allowed to refuse service to customers on religious grounds, and denial of protections claimed by newly vocal classes of minorities, such as transgender people.

But having allies on the highest court of the land is just the top layer of the Federalist Society’s expanding sway. For one thing, there is the judicial nomination process itself. When Trump was campaigning in 2016, he made the shrewd and un­or­tho­dox move of publicizing a list of 11 conservative legal stars that he promised to draw from if he got a chance to pick a Supreme Court justice. Leonard Leo, executive vice president of the Federalist Society, played a key role in suggesting the names, along with Trump’s future White House counsel, Don McGahn (also a society member), and the conservative Heritage Foundation. The list was expanded twice to include Gorsuch, Kavanaugh and others. Leo took a leave from his job at the Federalist Society to advise the White House on the confirmation process for Gorsuch and Kavanaugh — reprising a role he played for the George W. Bush White House in putting Roberts and Alito on the court.

The next most important segment of the judiciary — the federal appeals courts — is also filling up with Federalist Society members: Twenty-five of the 30 appeals court judges Trump has appointed are or were members of the society. “Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges,” McGahn quipped to a Federalist Society gathering in 2017. “That is completely false. I’ve been a member of the Federalist Society since law school. Still am. So, frankly, it seems like it’s been in-sourced.”
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