THE U.S. SUPREME COURT'S 2018-19 term made it clearer than ever that Chief Justice John Roberts rules the roost behind the high tribunal's regal red curtains. Roberts has replaced the retired Anthony Kennedy as the panel's most critical swing vote, and he is making full use of the power that comes with that pivotal role.
But make no mistake: Roberts is no liberal. He may be more cautious and less dogmatic than some of his brethren, but each and every Republican-appointed Justice--from Roberts to Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh--is staunchly conservative. And that's bad news for progressives.
"With the confirmation of Kavanaugh last October, we now have five current or former members of the Federalist Society on the Supreme Court," Michael Avery, professor emeritus of law at Suffolk University Law School in Boston, says in an interview. "If Trump is reelected, there probably will be a sixth at some point."
Avery, a former president of the National Lawyers Guild, is the co-author of the definitive study The Federalist Society: How the Conservatives Took the Law Back from Liberals, published in 2013. The book charts the group's rise from a law-school debate club at Yale and the University of Chicago in the early 1980s to a nationwide network of 70,000 economic, social, and Christian conservatives, along with rightwing libertarians, scattered in lawyers' chapters in eighty cities, and with student affiliates in nearly every major law school.
Federalist Society members attend conferences, seminars, and meetings, and participate in "practice groups" where they learn the contemporary right's gospel on civil rights, labor, the First Amendment, and other important areas of substantive law.
No longer a shoestring operation, the society's 2016 budget exceeded $26 million, raised in large part from contributions by rightwing philanthropists like the Koch brothers and other deep-pockets like the Mercer, Scaife, and Lynde and Harry Bradley Foundations.
Though Roberts claims he can't recall belonging to the Federalist Society, the group listed him as a member in its 1997-98 directory. The Court's other Republican appointees remain active participants in society events and conventions. Alito, Thomas, Gorsuch, and Kavanaugh all attended the organization's annual black-tie gala in November 2018 at the Main Hall of Union Station in Washington, D.C. The event was held in honor of the late Antonin Scalia, who served as one of the society's first academic mentors during his teaching days at the University of Chicago.
With the exception of Thomas, the Federalist Society has had a hand in selecting all of the Court's GOP-appointed conservatives. According to The Washington Post, in 2005 and 2006, the society's executive vice president, Leonard Leo, a devout Catholic and outspoken critic of abortion rights, raised about $15 million from his well-heeled patrons to pay for ads, telemarketing, and the mobilization of astroturf advocacy groups to support the nominations of Roberts and Alito.
Leo took a formal leave of absence to help Trump secure the confirmation of both Gorsuch and Kavanaugh.
It's not just party affiliation and the Federalist Society that link Roberts and his Republican colleagues. They are also united by judicial philosophy. Each, to varying degrees, embraces "originalism," the legal theory that posits the Constitution should be interpreted according to its meaning for the Founding Fathers, rather than read as a "living document" that can and should accommodate contemporary values, social needs, and evolving traditions.
ANY DOUBTS ABOUT Roberts's influence or the ideological orientation of the Court's conservative wing were laid to rest on June 27, the last open session of the just-concluded term, when the two most highly anticipated and sharply contested decisions of the year were announced: the first, Rucho v. Common Cause, dealing with partisan "gerrymandering," and the second, Department of Commerce v. New York, concerning the U.S. Census. The justices divided 5-4 in both cases, with Roberts writing the majority opinion in each.
Although the legal issues raised in each case are distinct, they are related, as states with more than one Congressional district are required to redesign their voting districts every ten years in accordance with new Census data.
Because redistricting is basic to the functioning of democracy, it often sparks heated litigation...