The Federalist Society's Influence on the Federal Judiciary

Date01 June 2009
Published date01 June 2009
Subject MatterArticles
Political Research Quarterly
Volume 62 Number 2
June 2009 366-378
© 2009 University of Utah
hosted at
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
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:
Banks Miller, PhD Candidate, Department of Political Science,
Ohio State University; e-mail:
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.

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