Red Scare 2: The Reign of the Federalist Society

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“Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. 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.” - Don McGahn, former Whitehouse Council 

Senator Whitehouse (D-RI), a member of the Senate Judiciary Committee, described the Federalist Society as “funded by dark money and designed to remake our judiciary on behalf of a distinct group of very wealthy and powerful, anonymous funders”. Although the Federalist Society rose to dominate the conservative legal movement through its threefold structure, its reign has been solidified by its deep-rooted ideology and an unending supply of dark money. 

Ideology

The academic scholarship that inspired the legal counterrevolution spearheaded by the Federalist Society can be tied to Robert Bork.

In 1982, Bork was a conservative professor at Yale, directly responsible for nurturing the creation of the Yale Federalist Society. Bork’s rejection of liberal jurisprudence during the Warren Court led to the creation of “an alternative theory of constitutional adjudication based on neutral principles derived from the text and history of the Constitution”. His scholarship laid the groundwork for originalism, the belief that the constitution must be interpreted in accordance with its meaning at the time of ratification. Bork would ultimately be appointed to the D.C. appellate court and nominated for the U.S. Supreme Court by Ronald Reagan. Bork’s SCOTUS nomination was “Borked” by a massive margin, arising from concerns over radical legal theories he later recanted. These positions included opposing the passage of the 1964 Civil Rights Act for violating the rights of business owners and arguing that a simple congressional majority should be vested with the authority to overturn a Supreme Court decision. Bork remains the intellectual forefather of the Federalist Society and authored a major part of the Society’s recommended readings for young conservative law students.

Supplemented by the academic discourse of William Rehnquist and Antonin Scalia, originalism developed into a legitimate rival to the jurisprudence of the Warren Court. President Ronald Reagan ushered in the ascendancy of the originalist philosophy by elevating Rehnquist to the Chief Justice of the Supreme Court and nominating Scalia as an Associate Justice. In “The Notion of a Living Constitution,” Chief Justice Rehnquist expounds on his judicial philosophy, articulating judicial restraint, the notion that it is not the place of the court to settle controversial social issues not yet addressed by the state or federal legislature. Rehnquist further argues that the judiciary must be detached and objective, blocking temporary majoritarian movements from abridging constitutional rights.

It is in the broadly cast shadows of these legal scholars that the Federalist Society shapes the judiciary. The original and current leadership of the Federalist Society have a constitutional ideology derived from the founders of originalism, men whom they worked directly under. Steven Calabresi, a member of the board of directors, clerked for both Judge Bork and Justice Scalia, Chief Justice John Roberts clerked for Chief Justice William Rehnquist, and Justice Amy Coney Barret clerked for Justice Antonin Scalia.

Originalism has emerged as the dominant legal ideology of the conservative network spearheaded by the Federalist Society. The creation of a novel legal philosophy, fundamentally intertwined with the growth of the Society, has been the most significant conduit in reshaping the judicial system. Federalist Society members incorporated into the upper echelon of legal society have dominated policy issues including gun control and privacy rights through originalist arguments. 

Funding 

The efforts of the Federalist Society to reshape the Supreme Court and the federal judiciary are supported by a breadth of dark money backing from conservative donors and interest groups. 

As a financial entity, the Society’s funding is further obfuscated by anonymous donors, shell corporations, and the donations of family foundations. The Federalist Society has standardized membership fees of $25 for lawyers, $5 for students, and $10 for faculty members. However, these fees cannot account for the 2017 operating budget of nearly $20 million dollars.

The Society has raised millions of dollars from the contributions of four conservative family foundations. The Olin Foundation, funders of the Institute of Justice and Center for Individual Rights, contributed at least $100,000. The Bradley Foundation, a rightwing trust, gave over $3 million to the Society. The Koch foundation is recorded to have provided at least $100,000 in direct funding. Between 1985-2002 the Koch, Olin, Bradley, and Scaife foundations were responsible for at least $5 million dollars in grants. These donations were crucial to the 182% increase in funding to the Federalist Society between 1993-2002. Investigative efforts made by the New York Times further uncovered a $2 million donation made by the Mercer family, the donors who bankrolled Breitbart News and the Trump campaign. Senator Whitehouse argues that these donors attempt to remain shrouded in anonymity, also funding a “fleet of front groups that file so-called amicus briefs before courts signaling what results the big donors want. The Kochs, the Bradleys, the Mercers, and their ilk spend millions to pursue an anti-regulation, anti-union, and anti-environment agenda”.

Other donations to the Federalist Society are contributed by shell organizations, such as the Donor Trust, to hide the identities of wealthy contributors. In 2017, the Donor Trust gave $5.5 million to the Society, a quarter of its operating budget. Even under intense media scrutiny, the true revenue streams of the Federalist Society are largely untraceable. 

The Society’s political wing, the Judicial Crisis Network, also has a seemingly unending stream of financial support shrouded in anonymity and mystery. The JCN has spent millions of dark dollars influencing the Supreme Court nomination process. For example, the JCN spent $7 million on blocking the nomination of now Attorney General Merrick Garland and another $10 million on the nomination of Justice Gorsuch to the court. The funding for these campaigns came from one individual donation, an anonymous $17.9 million contribution. The JCN would go on to receive $23 million from an obscure Virginia-based entity, the Wellspring Committee, a group with ties to Leanord Leo. This funding was given with the express aim of nominating Justice Kavanaugh, and later Justice Barrett.  

The JCN and the Federalist Society receive support from prominent conservative and libertarian family foundations, as well as a host of anonymized contributions. In refusing to acknowledge the source of these contributions the organizations have eschewed any pretensions of transparency, relying on dark money to fund the politicization of the judiciary. 

Conclusion 

The Federalist Society, emblematic of and largely responsible for the success of the conservative legal movement, has reached a point of unmatched influence. With a 6-3 Supreme Court majority carefully crafted by the Federalist Society, the group and its legal ideology will play a fundamental role in the future of American law including shaping decades of privacy rights and civil liberties. The Federalist Society and its political affiliate, the Judicial Crisis Network, remain purposefully shrouded in mystery. The organizations rely on deep-pocketed dark money donors and a network of interpersonal relationships, including those at the very pinnacles of legal and political life in the United States. The reign of the Federalist Society and its widespread effect on the conservative legal establishment will continue to play a fundamental role in shaping the rule of law. With unmatched influence on the judiciary and no liberal equivalency, it is unclear when or if the society’s dominance will be challenged. 

References

Alicea, J. Joel. “Dobbs and the Fate of the Conservative Legal Movement.” City Journal, April 1, 

2022. https://www.city-journal.org/dobbs-and-the-fate-of-the-conservative-legal-moveme

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“The Federalist Society: From Obscurity to Power.” People For the American Way, January 14, 

2017. https://www.pfaw.org/report/the-federalist-society-from-obscurity-to-power/. 

Rehnquist, William H. “The Notion of a Living Constitution.” Harvard Journal of Law & Public 

Policy 29, no. 2 (2006): 401–15.

Somin, Ilya. “Lessons from the Rise of Legal Conservatism .” Harvard Journal of Law and 

Public Policy , 1, 32 (2009): 415–30.

Whitehouse, Sheldon. “The Third Federalist Society: U.S. Senator Sheldon Whitehouse of 

Rhode Island.” The Official U.S. Senate website of Senator Sheldon Whitehouse of 

Rhode Island, March 27, 2019. https://www.whitehouse.senate.gov/news/speeches 

/the-third-federalist-society.