Review: Takeover: How a Conservative Student Club Captured the Supreme Court by Noah Feldman

In this short audiobook, based on a series of podcasts, Feldman describes the origin and impact of the Federalist Society.  It arose from a feeling on the part of numerous conservative law school students that they were viewed as 2nd class lawyers and buffoons by what they considered an overwhelmingly liberal law school environment.

Scalia was chosen as the groups quasi mentor because, even though he was not an academic at the time, he had “real-world experience” as an Assistant Attorney General.  They needed information on how the system worked so they could learn how to become part of, and dominate, that system.

The appointment of Alito was a direct result of the sabotage of Bush’s nomination of Harriet Miers to the Supreme Court.  The Federalist Society  had been disappointed in Anthony Kennedy, not a member, and were determined to place more conservatives on the court, so they began a well-funded campaign to prevent the successful nomination of Miers to the Court.  The result was that conservative presidents now felt impelled to only nominate Federalist Society members. Alito, a long-time member was the result.  He satisfied their wildest dreams.

Fascinating interview with Justice Sutton, Chief of the 6th Circuit  with regard to the Federalist position on judicial restraint, originalism, i.e. the original meaning, and  textualism.  Feldman brought up Bush v Gore arguing that nothing in the Court’s decision regarding due process that all the counties had to count ballots the same could ever be justified from an originalist point of view.   Sutton’s response was that when originalism fails at least there is a way to judge that failure, whereas without any set of principles or guidelines one has no way to judge the validity of a decision.  The point of “originalism” is that it serves as a set of principles that prevent judges from doing whatever they want. Sutton said that if you can’t figure out what the original meaning is, you defer to the legislature and democracy. See also Living Originalism by Jack Balkin and A Debt Against the Living: An Introduction to Originalism by Ilam Wurman.

Feldman sees fractures growing within the Society. If Gorsuch can render a decision based on textualism in Bostock, interpreting the 1964 Civil Rights law to protect gays and transgenders from discrimination, then, as Josh Hawley (former president of the Federalist Society at Yale) said, originalism and textualism are basically dead. Clearly, the original intent of the 1964 legislators did not mean “sex” to include gays and bisexuals.I think the problem for them is much deeper in that both concepts have simply been used to ground a decision they wanted personally to see. James Staab, in his excellent  Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas, says something similar, i.e.., if Justice Black, Scalia, and Thomas all claim to be originalists but come to vary different conclusions on the same cases, then originalism is a hollow philosophy. The whole point of iroiginalism is that it would bring consistency to results, conservative, of course. Gorsuch and Roberts, Federalists both, have broken that mold.