The Federalist Society's Influence on the Federal Judiciary

• DOI: 10.1177/1065912908317030
• Author: Nancy Scherer,Banks Miller
• Date: 01 June 2009
• Published date: 01 June 2009
• Subject Matter: Articles

366

Political Research Quarterly

Volume 62 Number 2

June 2009 366-378

© 2009 University of Utah

10.1177/1065912908317030

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The Federalist Society’s Influence

on the Federal Judiciary

Nancy Scherer

Wellesley College

Banks Miller

The Ohio State University

Only twenty-five years after its founding, the Federalist Society today boasts a nationwide membership including

renowned attorneys, politicians, policy makers, and jurists. Although the Society maintains that it is not a political

organization, liberal political activists claim the Society has long pursued an ambitious—and extremely

conservative—political agenda. In this article we ask: do members of the Federalist Society decide cases in a more

conservative manner than other nonmember jurists? Using data on decision making in the U.S. Courts of Appeals, we

find Federalist Society members are significantly more conservative than nonmembers and examine the long-term

implications of our study.

Keywords: judges; courts; decision making; appointments

The first chapter of the Federalist Society was

founded at Yale Law School in 1980, and the fol-

lowing year, a second chapter began at the University

of Chicago Law School (Bossert 1997; Hicks 2006).

By 1982, the Federalist Society was legally established

as a nonprofit corporation and thereafter became a

national organization (McIntosh 2003). From its

inception, the Federalist Society sought to provide a

counterbalance to the “liberal jurisprudence” that pre-

vailed in the nation’s law schools at that time, most

notably by developing a method of constitutional inter-

pretation now known as textualism (alternatively

referred to as originalism). As the Society’s Executive

Director, Eugene Meyer, explains textualism:

If a word meant “x” when the Constitution was

passed, and it means “y” today . . . you presum-

ably want to stick with the meaning it had

before. But for the most part, [textualism

requires that] you interpret what the meaning

[of the Constitution] was [when passed] based

on what the meaning was in the past, and you

pay attention to changes [in that meaning] over

time. (Meyer 2002)

The Society has also long focused attention on the

proper role of federal court judges in our democracy.

They contend that judges should practice “judicial

restraint”; unelected jurists should not interject their

personal policy preferences when interpreting the

Constitution:

Is the court interpreting the text and meaning of

the Constitution? If it is, and they [the judges or

justices] are doing the best they can do . . . their

judgment might be off, but there is not a struc-

tural problem. If the court is saying, “gee, we

don’t like the direction policy is going in this

country [and w]e want to change the direction

of policy . . .” that is not a proper role for the

courts. (Meyer 2002)

It has also been part of the Federalist Society’s

central mission “to present their ideas [about origi-

nalism] more articulately . . . [which] could cause

others to listen to these views more attentively, and,

perhaps ultimately, to question some of the liberal

Nancy Scherer, Assistant Professor of Political Science, Wellesley

College; e-mail: nscherer@wellesley.edu.

Banks Miller, PhD Candidate, Department of Political Science,

Ohio State University; e-mail: miller.3676@polisci.osu.edu.

Authors’ Note: The authors wish to thank Lawrence Baum,

Wendy Martinek, and Rachel McGuire for their extremely helpful

comments and advice on earlier drafts of this manuscript. We also

wish to thank Amy Steigerwalt for her role in conducting some of

the interviews cited herein. Finally, we wish to thank Steven Teles

for allowing us to read a draft of his recently published (and

extremely informative) book on the conservative legal movement.