Former president Donald Trump gave life appointments to 226 judges in the three major levels of the federal court system, the district courts, the circuit courts of appeal and the Supreme Court. He was accused of outsourcing the process to the ultra-conservative Federalist Society, which is a 501(c)(3) tax exempt nonprofit formed during Ronald Reagan’s first term. Don McGahn, Trump’s White House counsel and candidate selection czar, reportedly joked that it had actually been “insourced” because he had been a member of that organization since law school.
It appears that a recommendation by, or membership in, the Federalist Society is a prerequisite for Republican judicial appointees. In fact, the six conservative Supreme Court justices who voted to overturn Roe v. Wade are all Society members. So is Trump appointed Florida federal judge Aileen Cannon. Her decision granting Trump’s request for a special master to review documents he had stolen from the government has been roundly criticized by legal experts.
I believe there is no doubt that most, if not all, of the federal judges appointed by Republican presidents since Reagan was first elected were strong states’ rights advocates (federalists) and many were members of the Federalist Society, including around half of President George W. Bush’s appointees, according to Politico.
So, what is the purpose of the Federalist Society and why is it such a powerhouse in today’s political environment? Well, as stated on its website, it’s an organization of over 70,000 lawyers, law students and scholars who believe that individual citizens can make the best choices for themselves and society. I guess this just applies to men because many of its members are strong anti-abortion activists and certainly not “pro-choice.” Generally, however, “rugged individualist” phrases like this imply an advocacy for limited government and an opposition to government social safety net programs, like Social Security and Medicare.
Its website also advises that the Society is a group of conservatives and libertarians whose mission is to reform the current legal order. Its members believe that the duty of the judiciary is to say what the law is – not what it should be. This means, among other things, that they promote jurists (originalists) who will strictly interpret the Constitution in accordance with this Society tenet.
Donors to the Federalist Society have the option to remain anonymous but reports indicate that it is strongly backed by many large corporations and wealthy donors due to its support for lower taxes, limited federal regulations, free market capitalism and likeminded conservative federal judges.
Well, there has been a lot focus on federal judges this year, particularly those on the U.S. Supreme Court. With lifetime appointments, they can have a much greater influence on American society than the presidents who appointed them. Ultra-conservative Justice Clarence Thomas, for example, was appointed by one-term president George H. W. Bush in 1991. He is the longest serving Justice and could serve for another decade. The three conservative justices appointed by Trump during his one term could serve two to three decades.
The Federalist Society influence on Republican presidents and the federal judiciary for the past four decades makes it – in my opinion – the most powerful right-wing organization in the United States. For example, according to an article in Britannica, the five conservative Supreme Court justices adopted the Society’s broad interpretation of the Constitution’s right to freedom of speech in the Citizens United v. FEC (2010) case when they ruled that campaign finance laws could not restrict corporate spending on independent political advertising. That decision opened the floodgates of money in politics, much of it from shadowy sources.
Yet, the Federalist Society’s tremendous power in American politics is virtually unknown to many, if not most, voters. And very few have ever heard of its co-chair, Leonard Leo, a staunch social conservative lawyer and religious freedom advocate who has served the organization for more than 25 years.
Leo controls Marble Freedom Trust, a 501(c)(4) nonprofit that can use dark money from anonymous donors to promote conservative causes and Republican candidates. Last year, the Trust received a $1.6 billion – yes, billion – donation of Tripp Lite stock from the company’s owner, Chicago billionaire Barre Seid – which it later sold. This is likely the largest ever publicly known contribution to a politically focused entity, according to a recent New York Times article. Obviously, Marble Freedom Trust, the Federalist Society’s alter ego, has lots of resources to influence elections in 2022 and 2024.
Liberals founded an organization in 2001 called the American Constitution Society that has similar purposes as the Federalist Society. Very few voters have ever heard of it, however, and none of its judges are on federal benches, according to a Politico article. Although I didn’t find current numbers on how well it is funded, past data indicates the ACS has nowhere near the financial resources of the Federalist Society.
Unfortunately, there is no apparent clear path to counter the oppressive control the Federalist Society has on the nation – and our lives – with the vast sums of money its surrogates wield. Certainly, democracy-loving Americans should support congressional candidates who seek to nullify the effects of the Citizens United decision.
However it is accomplished though – we the people must find a way to put a lid on the enormous sums of money infecting American politics; that may be the only way to neutralize special interest organizations like the Federalist Society.