Tessa Silverman and Oliver Ma
Thu, May 19, 2022
In a draft opinion that would overturn 50 years of precedent to eliminate the right to abortion, Supreme Court Justice Samuel Alito insisted that he pays no mind to politics.
"We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey," Alito wrote in the leaked document. "And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision."
It does not take a law degree to understand that Alito's claims of political neutrality are specious. The draft decision advanced by Alito and four of his conservative colleagues in Dobbs v. Jackson Women's Health Organization is part of a public right-wing campaign to roll back the liberties of women and pregnant people.
As law students, we feel it would be helpful to share how conservative politics, like the fight to outlaw abortion, are incubated on law school campuses across the country. From there, these ideas travel through a well-funded pipeline to the Supreme Court.
Supreme Court Justice Samuel Alito delivers remarks during a Federalist Society dinner gathering in November 2006 less than a year after his confirmation.
If the name "Federalist Society" sounds familiar, you may recall that Donald Trump committed on the campaign trail to appoint "great judges, conservative, all picked by Federalist Society." As president, Trump delivered on that promise. Now six of the nine justices sitting on the Supreme Court have ties to the Federalist Society: Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts and Clarence Thomas.
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Leaders of the Federalist Society often describe it as a nonpartisan forum for the free exchange of ideas. From the start, though, the group has been intensely political.
What is the Federalist Society?
It was founded in 1982 by conservative law students at the University of Chicago, Yale University and Harvard University. The statement of purpose for the inaugural Federalist Society symposium read: "Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology. ... No comprehensive conservative critique or agenda has been formulated in this field. This conference will furnish an occasion for such a response to begin to be articulated." At the conference, featured speakers railed about "the onslaught of the New Deal" and argued that abortion and "acceptable sexual behavior" should be "reserved to the states."
In the 40 years since, the Federalist Society has concentrated power through the support of prominent conservative legal figures and politicians. The group is fueled by more than ideology, though. In 2019, the Federalist Society listed almost 50 "Madison Club Platinum" benefactors who contributed $100,000 or more.
Less publicly, its leaders are embedded in a network of nonprofits that feed each other millions of dollars to disseminate right-wing talking points and pack the courts with conservative judges.
U.S. Supreme Court Justice Antonin Scalia speaks at the American Enterprise Institute in Washington in 2012. AEI and the Federalist Society held a book discussion with Scalia, who coauthored "Reading Law: The Interpretation of Legal Texts." Scalia served on the Supreme Court until his death in February 2016.
Essentially, the Federalist Society has vast resources that it uses to recruit, train and prop up new generations of conservative lawyers. That project starts on law school campuses. There are more than 200 student chapters of the Federalist Society across the country. Some law students join these chapters because they are just fervently devoted to the Federalist Society’s mission.
Many, though, are enticed by the prestigious professional advantages that only the society can offer them. A big part of that is clerkships.
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Clerking is a popular, incredibly competitive opportunity for law students to work closely with judges after graduation. The Federalist Society has a track record of securing elite clerkships for its members early in their law school tenure. These clerkships function as launching pads to high-profile careers in government, private practice and the judiciary. For the Federalist Society, they are the channel between arming law students with conservative principles and positioning lawyers to implement conservative policies.
Supreme Court Justice Clarence Thomas addresses the Federalist Society in 1995 in Washington. Thomas spoke about how the concepts of victimhood and group rights have affected public debate and decision-making. Thomas has served on the court since 1991.
Take, for example, Scott Stewart, a graduate of Stanford Law School and member of the Federalist Society. Stewart first clerked at the 9th Circuit Court of Appeals before serving as a law clerk to Thomas at the Supreme Court. Last year, Stewart became Mississippi's solicitor general. In that capacity, he brought Dobbs to the Supreme Court, urging the justices to overturn Roe v. Wade and eviscerate abortion rights.
They'll go after other rights next
The Supreme Court's final decision in Dobbs, which is likely to come in late June, will emerge from the ecosystem of conservative ideology and policy constructed by the Federalist Society over the past four decades. And the same system will be used to attack other well-established freedoms that conservatives disfavor, like the right to same-sex marriage and to contraception.
So how should those of us who are serious about protecting women, LGBTQ+ people, people of color, people in poverty and other vulnerable communities respond?
First and foremost, we have to stop pretending the law is apolitical. There is a fear that, if we acknowledge the politicization of the Supreme Court, we will erode its institutional legitimacy. But that ship has sailed. A recent Pew Research Center survey found that public opinions of the court are "among the least positive" in 40 years, and that only 16% of Americans say the justices are doing a good job keeping political views out of their decisions.
Insisting on the neutrality of the court does nothing to improve that reality; it only gives cover to conservatives to continue abusing the system to their advantage.
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What would actually help are reforms to the Supreme Court, such as term limits, a binding ethics code and expansion of the bench. In the meantime, though, we need to equip ourselves to deal with the judiciary we have.
Law schools have a critical role to play here. Far too often, our classes train us to argue before an impartial court that simply does not exist. Professors should be explicit about the extralegal influences that shape judicial decisions and teach future lawyers how to leverage them to achieve fair, humane outcomes.
Progressives need their own machine
More broadly, we need to build a movement that can compete with the Federalist Society to imbue our courts and public offices with progressive values. That’s a heavy lift, but the work is already underway.
The American Constitution Society is a network of progressive law students, lawyers, judges, government officials and many others who are committed to equality, democracy and justice. Although ACS, which was founded in 2001, is much younger than the Federalist Society, it has begun to pick up steam.
Last year, the group supported President Joe Biden's efforts to nominate diverse candidates for judicial office and other federal positions. More than 200 people affiliated with ACS obtained federal appointments. ACS also fosters conversation about the discriminatory underpinnings of the law and promotes a view of the Constitution as a living document meant to serve the people – all people.
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This is the kind of movement that liberals and progressives must rally around if we hope to reclaim our country’s judicial system. The law is political, which means politics should matter to lawyers. But it also means the law should matter to anyone who wants to see real change take place for the better. For those who are ready to join the fight, we welcome you.
Tessa Silverman is a first-year student at Stanford Law School. Oliver Ma is a second-year student at Harvard Law School. Silverman and Ma are incoming co-presidents of American Constitution Society chapters at their respective institutions. The opinions in this article reflect their views as individuals.
This article originally appeared on USA TODAY: SCOTUS abortion ruling draft - Progressive lawyers must push back
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