The Courthouse Crusade Against Government
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The Rise of Activist Conservative Judges
The federal courts have now become a major battleground in the effort to weaken government and reduce its powers. The courts are arguably the most powerful branch of government; they are the final decision-makers in many policy areas – abortion, the death penalty, environmental protection, civil rights, gun control, and gay rights, to name just a few. There is virtually no way to overturn their decisions. And unlike with our elected officials, the public has no way to get rid of these policymakers. So this is the high ground in American politics and well worth fighting for.
Some history is useful here. For decades, conservatives have railed about the abuses of liberal “activist” judges and justices. They have complained that these jurists have stretched their interpretations of the Constitution to support wrong-headed liberal policies like abortion, school busing, and affirmative action. So from the Reagan administration onward, conservatives have been appointing so-called “strict constructionists” to the federal courts – judges pledged to stick to very narrow and limited interpretations of the Constitution.
But all the attention being paid to the notion of strict constructivism and to hot-button issues like abortion has obscured something else that has been going on in the courts. In recent years, a new conservative legal philosophy has emerged – one that few Americans are aware of. Conservatives are no longer content with strict constructionism but have moved on to promote an intentionally activist orientation. But now it is a right-wing activism. Now it is many right-wing judges who are striving to stretch and radically reinterpret the Constitution to promote their own political agenda. Supreme Court Justice Antonin Scalia once stated candidly that “I am not a strict constructionist, and no one ought to be.”4 One of the main goals of these judicial activists is to limit the scope and power of the federal government. They want to both rein in the power of the federal courts and also to launch an attack against the power of Congress and its ability to pass regulatory laws. This new conservative, anti-government judicial activism, if successful, could have profound and widespread political implications.
The Federalist Society
To understand where this new conservative activist approach in the courts has come from, we need to step back for a moment and consider the role that the Federalist Society has begun to play in judicial politics in United States. The Federalist Society is a loose network of law school professors, law students, lawyers, and judges who are all interested in actively promoting a more conservative/libertarian legal philosophy. The Society has attracted little public attention, in part because it has tried to keep a low profile, preferring to describe itself as an innocuous and powerless "debating society." But in reality it is an increasingly powerful organization that is helping to push the law and the judiciary to the far right and in the process is beginning to reshape the legal landscape in United States. The Society is generously funded by Richard Mellon Scaife and other wealthy conservative patrons who fully appreciate its potential impact of the judiciary and on American law.
Many of the Society's members espouse a new constitutional philosophy that goes far beyond strict constructionism. These Federalists are not content to simply reverse the rulings of liberal activist courts – they want to impose their own form of conservative and libertarian activism on the courts. For instance, they not only want to broadly limit the power of the courts, they also want to drastically limit the role of the federal government in society and they have begun to attack the legal and constitutional underpinnings of much of modern government. They believe the federal government has exceeded its constitutional powers in establishing the social welfare policies and regulatory policies of the New Deal and the Great Society. (It is revealing that one of their forums had the title "Rolling Back the New Deal.") They would not hesitate to overturn decades of precedent and settled law in order to undermine many of the laws and regulations that currently protect our environment, health, and workplaces. For example, in some of their forums and publications, members of the Society have called for such things as the abolition of the Securities and Exchange Commission and for the drastic limitation of the regulatory powers of the Environmental Protection Agency and the Occupational Safety and Health Administration – all proposals that are very far from the mainstream political ideas of most Americans.
The reach of the Federalist Society was particularly clear in the administration of George W. Bush, in which many of his appointees were active members. During his first term, these officials included:
Attorney General John Ashcroft
Secretary of the Department of Energy Spencer Abraham
Secretary of the Department of Interior Gale Norton
Solicitor of Labor Eugene Scalia
General Counsel of the Department of Education Brian Jones
Deputy Attorney General Larry Thompson
Solicitor General Ted Olson
Assistant Attorney General for Legal Policy Viet Dinh
Inspector General of Department of Defense Joseph Schmitz
Asst. Attorney General for Environment and Natural Resources Thomas Sansonetti
Principal Deputy Solicitor General Paul Clement
Associate Deputy Attorney General Ted Cruz
Director of National Institute of Justice Sara Hart
Deputy White House counsel Timothy Flanagan
Associate White House counsel Brett Cavanaugh
Associate White House counsel Bradford Berenson
Assistant White House counsel Noel Francisco
General Council Department of Energy Lee Liberman Otis
Deputy Secretary Department of Agriculture James Moseley
Assistant Secretary Department of Agriculture William H. Lash III
General Council Department of Education Brian Jones
Assistant Secretary Department of Education Gerald Reynolds
General Council Department of Health and Human Services Alex Azar III
Clearly membership in this club functioned as a passport to power in the Bush administration. But more important than these administrative appointments were the Federalists tapped for judicial appointments. Soon after his first election, George Bush organized the judicial selection committee made up of White House and Justice Department lawyers, most of whom were members of the Federalist society. Not surprisingly, 17 of the first 20 candidates that President Bush nominated to the federal judiciary were recommended by the Federalist society.5
Given this kind of reach, the Federalist Society might seem to some people like some right-wing legal cabal, but it is too open and too loose a network to really fit that description. It is interesting, however, that the conservative activist Grover Norquist once wryly commented that "If Hillary Clinton had wanted to put some meat on her charge of a ‘vast right-wing conspiracy,’ she should have had a list of Federalist Society members and she could have spun a more convincing story.”6