How the Federalist Society won

A few minutes before Roe v. Wade, Sheriff Girgis was sitting in his office at Notre Dame Law School, desperately clicking to update the Supreme Court’s website. Girgis had been waiting for this exact moment for months. He had been toying with the plots for years, really.

Conservatives of an older generation, who suffered a betrayal by the Supreme Court in 1992, when a trifecta of Republican-appointed justices upheld the constitutional right to abortion, in Planned Parenthood v. Casey, they couldn’t believe that Roe would ever really go down. But Girgis, who is thirty-six years old, emerged in a different era. “She was in kindergarten when Casey decided,” she said. Unlike his jaded elders, he believed that one day the Court would follow the simple and powerful idea that animates the conservative legal movement: that a judge’s job is not to make value judgments or speculate on the possible consequences of his decisions. . but, rather, to decide cases by looking solely at how the Constitution was understood at the time it was written. This method of interpretation, called originalism, would inevitably lead to the end of Roe.

Girgis, a professor specializing in philosophy and law, embodies a young, energized traditionalist wing of the conservative legal movement likely to be galvanized by Dobbs v. Jackson Women’s Health Organization, the decision that annulled the constitutional right to abortion. Early in her career, Girgis clerked for Samuel Alito, the judge who wrote the majority decision in Dobbs. She is a rising star in the Federalist Society, a powerful network of conservatives and libertarians that has a chapter at many major law schools, as well as dozens of professional chapters across the country. The organization prides itself on being a forum for ideas, even those that some conservatives hate, which is part of what attracted Girgis to becoming a member as a student at Yale Law School in 2011. “The Federalist Society it is not a ghetto within each law school,” he said. “At best, he is, or should be, a cheerful and willing debate partner.” Girgis is a frequent speaker at chapter events. A former member described him to me as a “beautiful and brilliant soul”. One of her mentors, Princeton’s Robert George, a heavyweight in the relatively small world of elite conservative academics, frequently touts him on Twitter, like a trainer cheering Rocky on in the ring.

In 1982, when the Federalist Society was founded, the conservative legal movement was still finding its footing. Law school campuses were predominantly liberal, and there was a prevailing sense among students and faculty that the Roe findings and other major Supreme Court decisions of the previous thirty years, on issues such as birth control, racial integration and voting rights, were false. morally good and legally correct. But an ideological counterrevolution was beginning. Lee Liberman Otis, one of the founders of the Federalist Society, then a law student at the University of Chicago, recalled thinking: It’s funny that there are these ideas about the law that Reagan seemed to have followed, in part, and from which that no one speaks to them. He helped organize the first conference of the Federalist Society; His speakers included Antonin Scalia, then a law professor, and Theodore Olson, then an Assistant Attorney General in the Reagan Administration. Otis realized that the conference was the start of something. Four years later, Scalia would rise to a Supreme Court seat and Olson would eventually become one of the most successful Supreme Court litigators in the country.

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“I don’t remember Roe being an issue in any of those conversations I had about [the] creation of Fed Soc,” Olson wrote me in an email. “It was about creating a forum/place for debate. Do not take sides on any particular issue. And yet, Roe symbolized something to the founding members of the Federalist Society. “For someone like me, a lawyer, Roe wasn’t really about abortion,” said John McGinnis, a conservative law professor at Northwestern University. (McGinnis was an early member of the Harvard Federalist Society chapter, when he fit into a “broom closet,” he said.) Roe, he told me, “was the culmination of the Court departing from the text of the Constitution and essentially—this is not too strong a word—making law.” One of the central points of the decision, that abortion had to remain legal before the point of fetal viability, seemed to conservatives to come out of nowhere.Some prominent left-leaning legal scholars, despite being pleased with the outcome of the decision, decision, they said the same thing: John Hart Ely commented that Roe was “No constitutional right and gives almost no meaning to the obligation to try to be so”. (The current Conservative majority on the Court happily quoted this line in unseating Roe.)

Over the next four decades, the conservative legal movement set out to radically change the way the law was talked about. They promoted a mode of legal interpretation that was supposedly value-neutral, based on their understanding of what the Founders wrote. The movement’s most powerful tool was its people: the Federalist Society began to function as a kind of Rolodex for legal jobs across the country, especially clerks and judges. And yet the process was slow. In 1987, the US Senate rejected the nomination of Robert Bork, an early Federalist Society figure, to the Supreme Court, based in part on his strong opposition to the Civil Rights Act of 1964. Anthony Kennedy and David Souter: Republican appointees without strong Social Ties: veered to the left during their time on the court, siding with their liberal peers on Casey, along with Sandra Day O’Connor, Reagan’s first nominee for the Court . Slowly, however, the original judges began to take their seats. Today, all six members of the Conservative majority participate in Federalist Society circles. They all voted to effectively end federal abortion rights that have been in place for the last fifty years.

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The Dobbs case also illustrates the broader influence of the Federalist Society beyond judicial appointments. The Conservative movement now has a legal intelligentsia of academics, writers, and national advocacy groups that fundamentally shaped how Roe was overturned. Alliance Defending Freedom (ADF), a conservative Christian law firm, helped Mississippi lawmakers draft the fifteen-week abortion ban that eventually made it to the Supreme Court, which the justices upheld in Dobbs, and then served alongside the Mississippi legal team as they presented their arguments before the Court. ADF General Counsel Kristen Waggoner, a member of the Federalist Society, told me the firm closely oversaw scholarship on abortion as it shaped Mississippi’s litigation strategy, which was led by another Federalist Society regular, Mississippi Attorney General Scott Stewart. The Court also relies on this scholarship; Dobbs’ decision is replete with footnotes debating the minutiae of how abortion was historically viewed. For Girgis, whose own scholarship has touched on topics such as the nature of marriage, religious liberty, and constitutional principles, this is what is compelling about his work: “The legal academy is not like other academic disciplines, because it is tied to reality. world in a very concrete way,” he said. “At least he’s supposed to be serving the bank and the bar.” Dobbs is exciting, he added, in part because he shows that “a theory of interpretation can lead to real-world results.”

While originalism may sound intuitive and straightforward, many in the legal world are cynical about its true goals. Critics of the conservative legal movement see the approach as a theoretical fig leaf used to justify decisions that align with the political preferences of conservatives. When I asked Girgis about this, he said originalism is supposed to do the opposite: It’s a way of making sure the law doesn’t just reflect the preferences of the ruling party. (Or, as Girgis put it, to ensure judges “don’t cheat.”) Dobbs was successful, in his opinion, precisely because he argued according to an established legal theory that has clear rules and little room for personal opinion. For Girgis, it is not a sign of bad faith that originalist decisions often achieve conservative results, because both are philosophical approaches rooted in the past.

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Still, other critics believe that originalism, even when applied in good faith, often has unacceptable harmful consequences. The dissent of the three liberal justices in Dobbs is in part a scathing critique of the originalist approach: the Founders, they wrote, “did not recognize women’s rights. When the majority says that we should read our founding charter as it was seen at the time of ratification. . . consigns women to second-class citizenship.”

Conservatives do not always agree on how originalism should be applied. For example, Neil Gorsuch, the originalist star who replaced Scalia, wrote the 2020 decision that extended workplace protections to LGBTQ employees. In the opinion, joined by Chief Justice John Roberts and the court’s liberal justices, Gorsuch made his argument on strictly textual grounds, but the result angered many conservatives who believed that the anti-discrimination laws of the 1960s they were never intended or understood to protect gay and trans people. During the same period, Roberts held back Roe’s ouster out of a desire for the Court to exercise restraint, despite the movement’s enthusiasm to see that decision on the ash heap of history; he continued to make clear his unease in his Dobbs deal, even when the majority overruled it.