The Federalist Society's Influence on the Federal Judiciary

By Scherer, Nancy; Miller, Banks | Political Research Quarterly, June 2009 | Go to article overview

The Federalist Society's Influence on the Federal Judiciary


Scherer, Nancy, Miller, Banks, Political Research Quarterly


Only twenty-five years after its founding, the Federalist Society today boasts a nationwide membership including renowned attorneys, politicians, policy makers, and jurists. Although the Society maintains that it is not a political organization, liberal political activists claim the Society has long pursued an ambitious-and extremely conservative-political agenda. In this article we ask: do members of the Federalist Society decide cases in a more conservative manner than other nonmember jurists? Using data on decision making in the U.S. Courts of Appeals, we find Federalist Society members are significantly more conservative than nonmembers and examine the long-term implications of our study.

Keywords: judges; courts; decision making; appointments

The first chapter of the Federalist Society was founded at Yale Law School in 1980, and the following year, a second chapter began at the University of Chicago Law School (Bossert 1997; Hicks 2006). By 1982, the Federalist Society was legally established as a nonprofit corporation and thereafter became a national organization (Mcintosh 2003). From its inception, the Federalist Society sought to provide a counterbalance to the "liberal jurisprudence" that prevailed in the nation's law schools at that time, most notably by developing a method of constitutional interpretation now known as textualism (alternatively referred to as originalism). As the Society's Executive Director, Eugene Meyer, explains textualism:

If a word meant "x" when the Constitution was passed, and it means "y" today . . . you presumably want to stick with the meaning it had before. But for the most part, [textualism requires that] you interpret what the meaning [of the Constitution] was [when passed] based on what the meaning was in the past, and you pay attention to changes [in that meaning] over time. (Meyer 2002)

The Society has also long focused attention on the proper role of federal court judges in our democracy. They contend that judges should practice "judicial restraint"; unelected jurists should not interject their personal policy preferences when interpreting the Constitution:

Is the court interpreting the text and meaning of the Constitution? If it is, and they [the judges or justices] are doing the best they can do . . . their judgment might be off, but there is not a structural problem. If the court is saying, "gee, we don't like the direction policy is going in this country [and w]e want to change the direction of policy . . ." that is not a proper role for the courts. (Meyer 2002)

It has also been part of the Federalist Society's central mission "to present their ideas [about originalism] more articulately . . . [which] could cause others to listen to these views more attentively, and, perhaps ultimately, to question some of the liberal positions which are being presented as the law" (Proposal to Form a National Conservative Legal Organization 1982, quoted in Teles 2008, 140 and 314). In short, the Society made plain as early as 1982 that it hopes to "transition" nonbelievers - lawyers who support the method of constitutional interpretation that sees the document as "living" and "evolving" - into committed supporters of originalism (Teles 2008).

Because the Society's positions on both constitutional interpretation and the role of unelected judges were deemed as viable legal arguments to further conservative political policy goals, the Society soon found itself important allies in Republican presidential administrations.

Society Members Gain Influential Positions in the Executive and Judicial Branches

The association between the Federalist Society and the Executive Branch began during the Reagan administration when Michael Horowitz, Reagan's Director of the Office of Management and Budget, contacted the Society's founding members and began introducing them to key people in the Reagan administration (Teles 2008). Edwin Meese - Counselor to the President (1981-1985) and Attorney General (1985-1988)- was another early supporter of the organization (Shapiro 1998; Teles 2008). …

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