Federalist Society – Sheila Kennedy

The Tyranny Of The Minority

Among the newsletters I receive is one from historian Heather Cox Richardson, who regularly provides historical context for contemporary issues.

These two paragraphs from a recent newsletter have prompted me to dust off and recycle one of my old classroom lectures.

The right-wing rejection of democracy was on display at a meeting of the Federalist Society in early March. Politico’s Ian Ward covered the meeting. The Federalist Society organized in the 1980s to argue that the civil rights decisions of the past several decades corrupted democracy because liberal judges were “legislating from the bench” against the wishes of actual voters. The society’s members claimed to stand for judicial restraint.

But now that their judges are on the bench, they have changed their philosophy. Last summer, after a Supreme Court stacked with Federalist Society members overturned the right to abortion, voters have tried to protect that right in the states. Now, according to Ward, the Federalist Society appears to be shifting away from the idea of judicial restraint in the face of popular votes and toward the idea that judges should “interpret the Constitution” in ways right-wing Americans support. They are quick to claim that democracy is not the answer: it would result, they say, in the tyranny of the majority.

When I taught Law and Public Policy, we talked a lot about the U.S. Constitution, and the Founders’ approach to that “tyranny of the majority.”

The phrase points to a legitimate concern: if the law is anything a majority of voters say it is at any given time, individual rights are at risk. A majority can vote to disenfranchise a minority, require everyone to attend a particular church, criminalize anti-government sentiments… the list goes on.

It is easy, after 200 plus years, to find fault with our Constitution, and in this blog I have pointed to areas that I think need to be amended or re-construed. But the philosophy with which the Founders approached these very real worries about what they called the “passions of the majority” was (in my view) as close to perfect as possible.

Drawing on Enlightenment scholarship, the Founders distinguished between matters that were properly within the decision-making authority of “the people”–the majority– and matters that were to be protected from the majoritarian passions of those people.

That division was the entire purpose of the Bill of Rights.

In our system, a majority of voters get to select their lawmakers (theoretically, at least, voting for those whose positions they endorse). Those representatives then decide, via legislative majorities, issues ranging from waging war, to taxes, to electoral processes, to the establishment of government agencies…on and on. (And yes, as I periodically point out, this process is currently not working very well…)

The Bill of Rights constrains the ability of the majority to determine the law. It protects the right of individuals to self-govern, marking out legal territory that the majority cannot enter. Your neighbors cannot vote to make you attend a particular church or prevent you from reading a particular book; they may not authorize a government functionary to “search and seize” you without probable cause. Etc.

For years, judges and lawyers have debated the range of personal liberties protected against majority disapproval. Was the Bill of Rights to be read as an organic whole, encompassing the “unenumerated” rights retained by the people, or was it to be limited to rights expressly identified? I think the expansive reading is more consistent with the text and the Founders’ original expressed philosophies, but it’s a legitimate debate.

The about-face by the Federalist Society is not legitimate. It is an argument for the tyranny of a minority–so long, of course, as that ruling minority agrees with them.

The American constitutional system was based upon the libertarian principle (libertarianism as properly–and originally–understood). I’ve shared it before; let me share it again: The libertarian principle holds that Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of another, and so long as they are willing to accord an equal liberty to their fellow citizens.

We can argue about the nature of the harms that justify government intervention, but Jefferson had it right: “It does me no injury for my neighbour to say there are 20 gods or no God. It neither picks my pocket nor breaks my leg.”

The purpose of the Bill of Rights was to erect a boundary between those matters that harm others, which the majority can properly sanction, and the individual, profoundly personal human rights that are simply none of government’s business.

We can argue about where that boundary belongs, but the Federalist Society, MAGA warriors and Christian Nationalists are trying to erase it altogether.

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Why Judges Matter

I was astonished when I read this report in The Washington Post, mostly because the judge was so obviously, incredibly wrong about both the law and the facts.

U.S. District Judge Reed O’Connor found that the pandemic “provides the government with no license to abrogate” the freedoms that any American has, and that the service members had a right to avoid getting a vaccination on religious grounds.

“This Court does not make light of COVID-19′s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” O’Connor wrote Monday in a 26-page order.

But the judge added that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

A first-year law student would know that “religious freedom” does not give citizens the right to harm others. I used to explain to my students that your sincere belief that God wants you to sacrifice your newborn does not trump laws prohibiting you from doing so. As “originalist” Justice Scalia wrote in Employment Division, Department of Human Resources of Oregon v. Smith, general laws prohibiting drug use take precedence over the plaintiffs’ right to participate in tribal religious observances that included smoking peyote.

Smoking peyote during a religious ceremony didn’t harm anyone. A requirement that military personnel be vaccinated protects others against a very dangerous disease. It would clearly be constitutional even if vaccine denial posed a genuine religious concern.

But it doesn’t.

The fact is that no religion (with the possible exception of Jehovah’s Witnesses and Christian Scientists, who don’t believe in any medical science) teaches vaccine denial. If I simply invent a “religious” precept that is not grounded in the actual doctrine of my faith, I can hardly demand that American courts respect my “religious” beliefs.

I was sufficiently incensed by this ridiculous ruling that I decided to Google the judge, who–unsurprisingly–is a high-profile member of the Federalist Society.

Here’s what the Texas Tribune had to say about him when he ruled that Obamacare was unconstitutional. (Remember that?)

In 2015, it was an Obama administration effort to extend family leave benefits to gay couples. In 2016, it was an Obama administration guideline allowing transgender children to use school bathrooms that align with their gender identity. And on Friday, it was the entirety of Obamacare that U.S. District Judge Reed O’Connor struck down as unconstitutional after a Texas-led coalition of 20 states sued this year to kill it.

Over the past four years, O’Connor has handed Texas major wins in several high-profile Texas v. United States lawsuits. And it doesn’t seem to be a coincidence that those cases landed in his court. The North Texas judge has emerged as something of a favorite for the Texas Attorney General’s Office, a notoriously litigious legal battalion known for challenging the federal government in cases and controversies across the country.

Since 2015, almost half of challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom, attorney general’s office records show. He is one of several dozen federal judges of his rank in the state.

The Obamacare decision, which was reversed by higher courts, was criticized by both conservative and liberal legal scholars as misguided and politically motivated.

The conservative legal scholar Jonathan Adler and the liberal legal scholar Abbe Gluck came together to write in The New York Times that the decision “makes a mockery of the rule of law and basic principles of democracy.

O’Connor is routinely described as a reactionary, and his vaccine decision is just the most recent evidence that he ignores legal precedents incompatible with his far-right politics. In 2015, he held a portion of the federal Gun Control Act of 1968 unconstitutional and enjoined the federal government’s definition of marriage in the Family and Medical Leave Act of 1993.

In 2016, as previously noted, he struck down an Obama administration rule requiring that transgender students be allowed to use the bathroom corresponding to their gender identity. In 2018, he ruled that the Indian Child Welfare Act was unconstitutional. That 1978 law was passed in response to concerns over the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families. It gave tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation.

It goes on.

O’Connor’s rulings are frequently reversed, but the damage done goes far beyond the time and money wasted on appeals. The initial publicity garnered by his off-the-wall rulings gives an aura of legitimacy to arguments that have no legitimacy, and that are inconsistent with settled constitutional precedents.

Thanks to this decision, people will die. Unnecessarily.

Judges matter.

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Got A Brown Shirt?

Our kids all tend to be snarky. (I have no idea where they get that….)

At any rate, when a reader shared an article from Slate about the Federalist Society, it immediately reminded me of a long-ago exchange between my youngest son and another lawyer. My son had just returned to Indianapolis to practice law, and a colleague had invited him to join the local chapter of the Federalist Society. He’d declined, saying “Sorry, but I don’t have a brown shirt.”

At the time, characterizing the Federalist Society as fascist was (arguably) unfair. As Dahlia Lithwick and Richard Hasen write in the linked article,

There’s nothing nefarious about like-minded people coming together to debate the issues of the day from a particular political perspective and to network with others of a similar mindset. (That’s the model of the American Constitution Society too, which engages in this activity from a progressive perspective and where we have both spoken.) Nor is there any question that groups of like-minded lawyers can and should gather together to mentor young attorneys and steer them into networks and eventually careers that will fulfill them. There’s been a recent controversy over whether it is inappropriate for federal judges to formally be a part of the Federalist Society, or the ACS, but even if these judges gave up their formal ties, the fact remains that the network and pipeline of clerkships and judgeships would remain intact. Again, none of this is new or particularly scandalous; Until recently, the biggest difference between the Federalist Society and ACS was less what they were doing and more that the former was simply better at it.

Until recently.

The article was a troubling report on what we might call “spawn of the Federalist Society.” A Senate report released by Senators Chuck Schumer, Debbie Stabenow, and Sheldon Whitehouse documents how a right-wing legal network spawned by the Federalist Society has–in Lithwick and Hasen’s words– gone “full Trumpian,” morphing from an organization of principled conservatives into a secretly-funded cabal spouting conspiracy theories such as the myth of widespread voter fraud, and how Leonard Leo, co-chairman of the Federalist Society, has been spearheading the effort to fill the federal judiciary with judges who are likely to rule in favor of secret, monied interests.

The Senate Democrats’ report details how an interlocked group of anonymous donors have been directing the judicial nominations process through media and lobbying campaigns. Many of these campaigns, including the Judicial Crisis Network, have ties to Leo, who has twice taken a formal “leave” from the Federalist Society to advise President Trump on his Supreme Court nominations, then hopped back into his old post, while boasting that his organization was in firm control of the nominations process.

According to Lithwick and Hasen, while the Federalist Society continues to claim that it is uninvolved in politics, policy, or judicial nominations, and the group avoids taking “official” positions on such matters, Leo (who has effectively directed the group until very recently) has developed “a network of political groups, none of which disclose their donors, funded at about a quarter of a billion dollars.” That money has mostly been used to help Mitch McConnell seat so-called “conservative” (and frequently unqualified) judges on the federal bench.

Judicial Crisis Network –one of the organizations in that shadowy network– spent $7 million opposing Merrick Garland, $10 million to support Neil Gorsuch (targeting ‘vulnerable Democrat Senators’), and another $10 million in advertising to support Brett Kavanaugh. And nobody knows where the money came from.

More recently, that shadowy network has engaged in a new initiative: an effort to engage in political dirty tricks to help keep its cronies in power.

But the big news today is where that conservative network is heading: Their activities now go well beyond dark money political hardball into conspiracy mongering and election-meddling efforts around the November presidential elections that endanger our democracy.

And while this is happening, the Trump administration is rolling back the rules that would require these organizations to disclose their donors….

If there isn’t a blue wave in November, what is essentially a bloodless coup will have succeeded–making my son’s snark about needing a brown shirt terrifyingly true.

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