Conservatives Have Been Packing the Courts for Years

Blue background with red and white cards stacked on top of one another like a house of cards.

Public support for the U.S. Supreme Court is at an all-time low. This dismal polling follows a Court term that started with allowing Texas’ Senate Bill 8 to remain law so that public citizens could police each other’s abortions and ended with completely overturning Roe v. Wade, among other radical conservative decisions. In so many areas of law, the Court is headed in a direction completely out of step with the vast majority of Americans.

The question for the moment is: How did we get here? 

Many are noticing for the first time just how politicized our courts are, but the reality is that conservatives have been laying this groundwork for over half a century. In 1971, Justice Lewis Powell authored the now legendary Powell Memo. The memo, which is really more of a treatise for conservative takeover, reads like it could have been written yesterday. It is complete with invocations against liberal “Marxists” and “Communists,” a defense of “western society” and a threat that the media, universities and racial minorities are teaming up to defeat big business. Calling for the kind of corporate influence over government that the Koch brothers would later perfect, the memo spoke of the need to better infiltrate aspects of society and secure power to protect the wealthy and powerful. It specifically highlighted a “neglected opportunity in the courts” and addressed the need for conservatives to do better in exploiting judicial action. 

A decade later, in 1982, youthful Reagan enthusiasts took up that opportunity and led the charge to found the Federalist Society (FedSoc). From the start, despite its academic pretensions, FedSoc had an insurgent mission: to turn back the perceived excesses of Chief Justice Earl Warren’s Court on issues of race, religion and criminal procedure. These young lawyers wanted to be to the courts and justice system what President Ronald Reagan had been to the New Deal and Great Society — a sledgehammer. 

Their movement began with fits and starts. While Reagan and his chief counselor Edwin Meese were successful in stacking the federal courts with judges like Alex Kozinski and justices like Antonin Scalia, there had been significant failures. Most significantly, in 1987, Democrats had blocked the Supreme Court nomination of Reagan nominee Robert Bork. Bork was a fierce opponent of civil rights — and a founding advisor of one of the first FedSoc chapters.

Then in 1990, conservatives made their greatest faux pas. President George H.W. Bush nominated David Souter to the Supreme Court, expecting him to be a conservative justice. But just two years later, he sided with Reagan appointees Sandra Day O’Conner and Anthony Kennedy in Planned Parenthood v. Casey to uphold Roe.

Conservatives were so incensed by Souter’s alleged betrayal that the next time a Republican president had a Supreme Court vacancy, “No More Souters!” became the conservative rallying cry. A 2005 Wall Street Journal editorial simply titled “No More Souters” urged President George W. Bush not to make the same mistake by nominating then-U.S. Attorney General Alberto Gonzales because he similarly had a short paper trail. Instead, Bush nominated now-Chief Justice John Roberts.

Despite Roberts’ conservative record, particularly on voting rights, he was conspicuously not a FedSoc member, prompting FedSoc to play a more strident role in ensuring conservative nominees pledged allegiance to its legal orthodoxies. Today, those orthodoxies are commonly referred to as “originalism” and “textualism,” and FedSoc requires absolute adherence among its membership — or at least among those who seek power as federal judges. 

It’s time the progressive movement takes the steps necessary to win back our courts. We deserve a forward-thinking judiciary filled with movement lawyers who want to see progress for our nation.

Indeed, without fail, during each and every confirmation hearing for the federal judiciary, you will hear conservative U.S. senators like Ted Cruz (R-Texas), Mike Lee (R-Utah) or Josh Hawley (R-Mo.) (all FedSoc members themselves) ask nominees, under oath, whether they are originalists and textualists, as if it were the equivalent of asking the nominee whether they believe in gravity. If the nominee refuses to acquiesce, conservatives will claim they lack a “judicial philosophy” at all and insist on opposing their confirmation, possibly endangering their nomination — especially if they were dependent on conservative support.

FedSoc first demonstrated the strength of this orthodoxy — and its own political power — by dooming the 2005 nomination of White House Counsel Harriet Miers. Despite her connection to Bush and extensive legal experience, Miers was not a FedSoc member and had once even disavowed joining the organization. Knowing this nominee would be filling the seat of O’Connor, who ruled in favor of abortion, FedSoc wanted to leave absolutely nothing to chance. Bork himself took to the Wall Street Journal to excoriate Miers’ record, warning that her evangelical Christianity was no guarantee she’d overturn the “constitutional travesty” of Roe v. Wade

Just 24 days after announcing Miers’ nomination, Bush withdrew it. Four days later, he instead announced the nomination of Justice Samuel Alito. Alito had come up through the FedSoc pipeline and, before becoming a justice, was the one judge in the federal appellate court that heard the Planned Parenthood v. Casey litigation who would have ruled that it was constitutional to force a woman to notify her husband if she intended to end her pregnancy. Alito’s vote against Roe was a lock, as would be proven 17 years after his nomination.

Since Alito’s confirmation, FedSoc has been on a relentless path to consolidate its power. It was therefore unsurprising that the next Republican president, Donald Trump, literally deferred to FedSoc to pick his judges. That included the three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — who helped overturn Roe. Trump also allowed FedSoc to direct a much more wide-ranging transformation of the judiciary, appointing more than a quarter of the current federal judges. FedSoc has sought to make the federal courts “unrecognizable” and, in just one Supreme Court term, seemed to have accomplished that feat. 

defending democracy podcast The Judiciary Needs Reform feat. Senator Sheldon Whitehouse

Fighting back now means recognizing that conservatives have been playing a two-faced game for decades. They claimed to believe in an objective, neutral judiciary, but they were working very hard to radicalize the courts at the same time. In his concurring opinion in Dobbs, when Justice Clarence Thomas called for a review of all substantive due process cases, including marriage for same-sex couples and the right to contraceptives, this was not mere rhetoric. It was a rallying cry to a movement built over decades to transform America through the least democratic process possible in our constitutional system.

It’s time the progressive movement takes the steps necessary to win back our courts. We deserve a forward-thinking judiciary filled with movement lawyers who want to see progress for our nation. We shouldn’t pretend otherwise, as conservatives have for years. They accuse liberals of wanting to “pack” the court, but they were the ones who invented rules out of thin air to justify blocking now-U.S. Attorney General Merrick Garland’s Supreme Court nomination during an election year and then rushed Barrett’s confirmation weeks before an election. We can’t undo the politicization of our courts, but we can work to counterbalance them — and by doing so, we can make them more representative of — and responsive to — the people they serve.

Rakim Brooks is the president of Alliance for Justice and a public interest appellate lawyer.