Anytime Trump is stopped from doing something truly horrid, it’s most likely because a judge stopped him. In response, with the help of the his right-wing Federalist Society advisors, are working on destroying this braking mechanism.
Not just for himself, but for the next generation of corrupt politicians , racists, homophobes, xenophobes, misogynists, anti-environmentalists, anti-worker corporations, forced-birthers and all the other dark forces he’s pulling from our nightmare attic. You will note that there are no older people in their selections. They want their influence to last for decades.
Donald Trump, Mitch McConnell and Chuck Grassley (former Chairman of the Senate Judiciary Committee) spent most of 2017 filling the 5th Circuit Court with far right wing extremist judges, all hand-chosen by the alt-right Federalist Society. Remember this guy?
Yeah, we called on him…and his friends. Judge James C. Ho, Judge Stuart Kyle Duncan, Judge Kurt D. Engelhardt, Judge Andrew S. Oldham. None of these people deserved to be called judge, but now they’re in power. As a result, all the states in the 5th circuit are essentially a lost cause for the next 20-30 years in terms of enviro rights, LGBTQ rights, repro rights, voting rights, workers’ rights, etc. Serious damage was also done to the 8th Circuit Court as well. Trump and McConnell are now gunning for the 6th Circuit Court, with the 9th – currently the most progressive Court that includes California – also under attack.
How many are there?
There are approximately 70,000 Federalist Society members out of 1,340,000 licensed lawyers. Only 5%.
Who is this Federalist Society that keeps recommending these horrible people to Trump anyway?
One definition: “The Federalist Society, a Right-wing network of lawyers, judges and supporters, is undoing civil rights and other gains made through the courts.” (ratical.org)
One simple truth is that the Constitution did not come with an instruction manual defining the one and ONLY CORRECT way to deal with constantly changing societal values and language. That the president must be 35 years old remains clear. The exact meaning of words like “right,” “unreasonable,” “probable cause,” “due process,” “excessive,” “cruel and unusual” and “equal protection” constantly evolves.
How judges interpret tricky Constitutional issues depends on their political bent and societal prejudices. Like the Bible, the source both of pro-slavery arguments and the civil rights movement, Constitutional arguments can be made for most positions with enough carefully cherry-picked phrases and historical references. Libertarian-oriented Federalist Society members churn their way through the legal world with “Federalism” and “Originalism” as their twin North Stars, as uninterested in the civil rights of those ignored by our first Constitution as its original authors.
The Federalist Society and Federalism: Society members believe that authority of the federal government is limited, that states are sovereign bodies, and that courts should enforce limitations on federal power and bolster the power of states. However, since “…white supremacy was the de jure governing philosophy in the 13 colonies and the United States from 1619 to the 1960s…” there was some legal cleanup work to do. “(White supremacy) did not really begin to be fully dismantled until the civil rights movement and the cumulative impact of court rulings…most notably in 1954 (Brown v. Board of Education), 1964 (federal Civil Rights Act), 1965 (federal Voting Rights Act) and 1968 (federal Fair Housing Act).” In a federalism-based decision on Shelby County v. Holder, the Roberts Court struck down the Civil Rights Act’s requirement that nine states with histories of blatantly racist voting barriers prove to the U.S. Attorney General that any new voting rules would not be discriminatory. Shelby County v. Holder won as a violation of the “equal dignity of states“, familar wording that was also used in the horrendous Dred Scott decision. Texas immediately moved to enact, again, discriminatory voter-identification laws, just like in the good ol’ days.
The other decision based by federalism and misinformation was NFIB v. Sebelius. Chief Justice Roberts stated that Congress exceeded its spending power because it had coerced states into participating in the expanded Medicaid program by authorizing the withholding of funds for existing Medicaid programs, if states refused to participate. His ruling has been catastrophic for many of the most vulnerable Americans.
As constitutional scholar Stephen Griffin explains, “by making it easy for states to decline to participate in the expanded Medicaid program, the Court reinforced the heightened discrimination against poor African Americans in the South, a legacy that the United States has been trying to overcome since the Civil War. As the Court’s decision in Shelby County gave Southern states a green light to renew their long-standing pattern of discriminating against African-American voters, so the NFIB decision encouraged Southern states to continue another long-standing tradition—that of severely restricting social-service benefits to their poorest citizens, most of whom are African American.”
The Federalist Society and Originalism: This group believes that their libertarian-fueled “Originalist” methodology, a backwardly-focused attempts to read the minds of the original framers of the Constitution, is the only correct pathway. This creative-writing class nonsense was critically debunked in 1939 by Professor Jacobus tenBroek of UC Berkeley. He described their position here: ” 1) judges should “abandon” contemporary perspectives in deference to the “vantage point” of the people living when the Constitution was adopted; (slave holders? white male property holders?) and 2) the original meaning of the Constitution does not change“(Vox). More recently, Gorsuch has stated “Judges should … strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
Who says?
This is the same paternalistic “father knew best” framing that drives all of conservative politics. That there have been large revisions to the original constitution, as the original authors left out important issues, like universal suffrage, racial and gender equality, does not pose an obstacle for the ideologues of the Originalist movement, which included Supreme Court Justices Robert Bork and Antonin Scalia, and now Gorsuch, Thomas and Kavanaugh. They decide what ruling they want based on the their own anti-government agenda of the Libertarian party or the anti-everybody-else litany of the current GOP, and then engage in their favorite creative writing game – “What would James Madison have done?” to justify it for posterity. One of Trump’s shortlist nominees, Amy Coney Barrett, admitted that it’s almost impossible to apply originalism faithfully because “adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” a decision originalists view as an “activist” ruling. Ignoring that the Constitution deliberately left room for growth and corrections, FS members work to fit everything back into the original shoebox in creative ways that don’t make them seem immediately like the misogynistic, xenophobic rascist people of privilege that they are.
The Brown v. Board of Education: The 14th amendment is a particular itch with the Federalist Society (great article on originalism here), as it lies at the the heart of the most famous reversal of Supreme court rulings of its time. Brown v. Board of Education was a total slap at “state’s rights” and all the racist trapping that follow those words around. The ruling trounced the Jim Crow “separate but equal” ruling of “Plessy v. Ferguson (1896). The whole way that Chief Justice Earl Warren made his decision still annoys the heck out the the FS crew and a basic underlying racism underlies their endless arguments. Author Bruce Ackerman, Yale law professor and author of We the People, Vol. 3: The Civil Rights Revolution, stated: Conservatives invoke Brown for an “anti-classification” principle that views any state action which classifies people on the basis of race as constitutionally unsound. Liberals, on the other hand, draw out an “anti-subordination” principle, in which any state action that socially subordinates a group of people is unconstitutional. “Brown is an anti-originalist opinion. People, [Chief Justice Earl Warren] says, have argued about this in the court; we can’t figure it out, it’s indeterminate—they didn’t really have public education in a serious way in 1868 [when the Fourteenth Amendment was ratified]. We’re going to have to think ourselves about this. Anybody who is living in America today knows that separate can’t be equal.”
Well, Warren did. The Federalist Society, maybe not so much.
Chief Justice Robert (an FS member) decided that Brown v. Board of Education, as a precedent to Parents Involved in Community Schools v. Seattle School District No. 1 (2007) was about color blindness rather than integration, and stuck down the school’s integration plans as being too heavily dependent on race. As legal scholar James Ryan explains, Roberts’s description of Brown not only distorts history but insults advocates who risked their lives to integrate public education as well as citizens and school officials who continue to work for integration today.
Are these nominees a danger to us?
As of January 2019, 25 out of 30 of President Trump’s appellate court nominees were current or former members of the society. Not a surprise as they are chosen by Leonard Leo, the society’s executive vice president and right-wing extremist. Per Wikipedia “Federalist Society members have generally chosen not to criticize President Donald Trump …on his breaches of …legal norms and traditions in exchange for the gift of Supreme Court Justice Neil Gorsuch…. In May 2018, the Federalist Society hosted a phone call entitled “examining the legality of the Mueller Investigation”, where one of the featured speakers has argued that Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election is unconstitutional.”
“What they have in common is an exceptional hostility to the progress that’s been made in this country since the New Deal, whether that’s to workers, civil rights litigants, women, consumers or people who care about the environment,” Aron said. “Nominees being confirmed by the Republican Senate today would have been deemed unqualified even under President George W. Bush because of their extremism.”
From the Nation: “Federalist arguments include: Sexual-harassment and gender-equality laws impose illegitimate burdens on business; the powers of the Environmental Protection Agency should be exercised by the free market or, at most, by local or state government; juries are too unpredictable to be given the power to award punitive damages against large corporations but legitimate enough to be empowered to impose the death penalty; welfare laws by and large should be repealed; hate crimes are not a separate and more reprehensible category of criminal behavior than crimes not motivated by animus toward people of different races or sexual orientation; and the right of the people to keep and bear arms means empowering individuals to take up arms, not just preserving organized state-based militias.”
Here are some of their “gifts” to us so far.
- They have argued that courts should not take race into account when making decisions. They believe that there is no legal difference between considering race or gender for purposes of exclusion and considering race or gender for purposes of inclusion. They argue that both are harmful and make racial problems worse.
- They have forcefully argued against regulations on guns and they have been influential in shifting legal views on gun rights to the extreme.
- They influenced on the Citizens United Supreme Court ruling which corrupted regulations on campaign finance.
For those of us who believe our founding fathers trusted us with the car keys, believe that “true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.”
Fight against each and every one of these nominees.
Deeper dives
- The problems with Originalism (NYT)
- Judicial Originalism as myth (vox)
- Movin’ on Up with the Federalist Society (Nation)
- Why Supreme Court “Originalists” are wrong about the Constitution. (USNews)
- Constitution Myth #1: The Right is “Originalist” – Everybody else is “idiotic” (atlantic)
- The Federalist Society will soon have a 5-4 stranglehold on the Supreme Court (Slate)
- The Federalist Society’s threat to Feminism and the Supreme Court (MS)
- Use by the US Supreme Court of Extrinsic Aids in Constitutional Construction (scholarship.law.berkeley)
INDIVISIBLE VENTURA 