Packing the Courts: Republicans’ Proven Recipe for Success


When I was 19 years old, I wrote a college paper entitled, “Packing the Supreme Court: The Impossible Pursuit.” In retrospect, I got the analysis completely wrong. “Packing the Court”—i.e., filling it with votes that reliably align with the president’s political ideology—is a fairly simple affair these days. The mistake I made back in 1998 was to review all Supreme Court justices since the 18th Century. Over the past 30 years, however, changes have removed the uncertainty of selecting federal judges that are as ideologically driven as the president selecting them—particularly if that president is a conservative.

History likes to remind us of colossal mistakes presidents have made on the Supreme Court. Most famously (and wondrously for liberals), President Eisenhower put liberal icons Earl Warren and William Brennan on the Supreme Court. Eisenhower even said with respect to Chief Justice Warren, “[He was] the biggest damned-fool mistake I ever made.” More recently, President George H.W. Bush certainly screwed up with his pick of moderate Republican Justice David Souter in 1990 (again, to the glee of Democrats). While the seeds of effective court-packing had been planted a few years earlier, it was the far-right’s disappointment in Justice Souter that resulted in affirmative steps being taken to make sure such a “failure” never happened again.

The process of nominating a Supreme Court justice (or really any federal judge) was revolutionized with the creation of The Federalist Society in 1982. The Federalist Society is a legal organization that works to promote conservative legal theory and individuals who share its beliefs. It professes to want judges who “say what the law is, not what it should be.” Or as Chief Justice Roberts incredulously stated at his Senate nomination hearing, “My job is to call balls and strikes and not pitch or bat.” Of course, if the process of deciding cases was so black and white, we could just do away with our nine justices and obtain the proper rulings with what I imagine would be a pretty simple computer program. That, however, is not the case. Black-and-white cases get resolved by lower courts. Cases that get to the Supreme Court are oceans of grey punctuated with vast seas of complexity.

The Federalist Society espouses everything from bumper sticker slogans such “preserving freedom” to advocating for complex legal principles such as “originalism” and “strict constructionism.” Despite all this window dressing, The Federalist Society is essentially a legal club for really conservative people who believe: corporations are people; free-markets are infallible; police conduct is not to be questioned; workers are just cogs in our economic machine; and those convicted of crimes deserve few rights.

The Federalist Society does not boast a huge membership. Its website claims to have 30,000 attorney members. There is no way to verify this number, but I suspect it is highly inflated. Even if we assume that number is accurate, it means only 2% of attorneys in this country are members of The Federalist Society—a statistic that should not be surprising. Not only does The Federalist Society represent fringe legal beliefs, but attorneys, when compared to the general population, tend to be more liberal and more Democratic.

Despite its small size and fringe beliefs, The Federalist Society has become a force to be reckoned with in American politics. Since the “mistake” of Souter (who turned out to be a very thoughtful justice with the highest of integrity) 24 years ago, every Republican appointee on the Supreme Court has been a member of the Federalist Society: Clarence Thomas, John Roberts, and Samuel Alito. The only Republican nominee in the past 24 years who was not a member of The Federalist Society was Harriet Miers in 2005, and the conservative establishment stopped that nominee dead in her tracks. The conservative opposition was led by The Federalist Society who launched a whisper campaign that led to President Bush withdrawing Ms. Miers as a nominee and replacing her with a card-carrying member of the Federalist Society, Samuel Alito. When rumors started circulating that President Bush was going to appoint non-Federalist Society attorney, Alberto Gonzales to the Supreme Court, the conservative blogosphere ran with the meme: “Gonzales is ‘Spanish’ for ‘Souter.’” In conservative politics, one does not deviate from the playbook.

Conservatives have now achieved a Supreme Court that has a 44% membership rate in The Federalist Society (4 out of 9 justices: Scalia, Thomas, Roberts, Alito) despite that organization representing just 2% of the legal community (at best!). Should our next president be a Republican, that number will surely surpass 50%.

Analyzing lower court statistics is much more difficult as much less is known about the background of each federal judge. Further, The Federalist Society does not make public every member of its organization, and judges have a vested interest in concealing membership in controversial organizations like The Federalist Society. There can be no question, however, that membership in The Federalist Society makes it much more likely that a conservative attorney or judge will be appointed or promoted during a Republican administration. Whether membership in The Federalist Society is actually a requirement is not yet known, but the possibility is frightening.

So when legal scholars or naïve college students try to tell you that court-packing is too hard, remind them that not only is it possible, it has been accomplished. Democrats and moderates should live in fear of any Republican president as that person will unquestionably rely on The Federalist Society to dictate the president’s nominees to the federal bench (or at least be strong-armed by them). The American People got lucky with Earl Warren, William Brennan, and David Souter, but there is every reason to believe that will never happen again—at least with respect to a Republican president.

– Dylan


One Response to “Packing the Courts: Republicans’ Proven Recipe for Success”

  1. […] The most dangerous combination since fox and news « Packing the Courts: Republicans’ Proven Recipe for Success […]

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