What is the Federalist Society and what does it want from our courts?

Protests at the U.S. Supreme Court are pictured on the day Roe v. Wade was overturned 2023 The Tufts Daily

The Federalist Society (FS) is the most successful activist group to shape, if not make, federal court decisions. How has that come about? Where did they come from? And what do they want? Before answering those questions, one must appreciate their immense presence in the federal court system.

Federalist Society judges could determine many, if not the majority, of decisions from the federal courts.

Senator Sheldon Whitehouse says that nearly 90% of President Donald Trump’s appellate judges appointed to the Circuit Courts were members of the Federalist Society. That’s easy to believe, given that as a presidential candidate in 2016, he promised that his judicial nominees would “all [be] picked by the Federalist Society if he were elected president.”

Consequently, Trump appointed 53 judges to comprise just under a third of the federal appellate judges. Previously about half of Bush’s appointments to those courts went to society members. That’s no surprise because the George H.W. Bush administration gave responsibility for judicial selection in the White House Counsel’s office to Lee Liberman Otis, a founder of FS.

At the entry-level of federal courts, Trump has appointed about a quarter of district court judges. However, he delivered for the Federalist Society by selecting three members to the Supreme Court to join the three members already on it.Then you must add the Federal Society judges that remain on the SCOTUS appointed by George H.W. Bush and Ronald Reagan, giving FS effective control over that court’s decisions. The six SF Justices, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Amy Coney Barrett, now represent all the Republican appointees on SCOTUS.

Having vertical consistency of very conservative decisions rising from a district court to the circuit court and then to the Supreme Court could allow society members to reject prior court decisions that have been accepted for decades. I describe how an SF district judge, backed up by an SF-dominated circuit court, recently rejected the FDA’s twenty-year prior approval of an abortion pill used as a safe drug across five presidential administrations.