ADDRESSING over 2,000 conservative lawyers and friends at a banquet in central Washington, DC, last week, Neil Gorsuch was in jocular form. “If you’re going to have a meeting of a secret organisation, maybe don’t have it in the middle of Union Station!” quipped the newest Supreme Court judge. This was disingenuous. The reason many worry about the Federalist Society, the legal organisation whose annual bunfight Justice Gorsuch was addressing, is not because it is shadowy, but because its influence is vast, brazen and part of a wider politicising of the last branch of American democracy to succumb to partisanship. His speech suggested those worries are if anything underplayed.
Two things about it were most striking. First, the triumphalist tone Mr Gorsuch, a supposedly impartial steward of the constitution, struck in celebrating the legal philosophy and activism of a group closely linked to the Republican Party. “Tonight, I can report, a person can be both a committed originalist and a textualist and be confirmed to the Supreme Court!” he said. “Thank you from the bottom of my heart for your support and prayers through that process.” If that was perhaps inappropriate, it was deserved. Founded in the early 1980s, as a riposte to the legal profession’s liberal mainstream, the Federalist Society has had a hand in the past three Republican Supreme Court appointments—starting with its frosty response to George W. Bush’s nomination of Harriet Miers and promotion of Samuel Alito in her place. Yet its role in Mr Gorsuch’s elevation is much greater.
As the youngest conservative justice, he is the first to have been a beneficiary of its now-ubiquitous legal networks throughout his career. Less ideological ways for conservative judges to advance—including senatorial favour or working for the Republican Party—have meanwhile fizzled. When Donald Trump, in need of conservative credentials last year, demanded a list of potential Supreme Court nominees, it was natural he would turn to the “Federalist people” for their suggestions, which included Mr Gorsuch. Having ridden that promise to victory, Mr Trump has since sidelined the American Bar Association, which traditionally vets judicial nominees, and outsourced the process to the society—or rather insourced it, the White House counsel, Donald McGahn, noted at its annual shindig, because he is also a member.
The second striking thing about Mr Gorsuch’s speech was his boldness in signalling a legal agenda—curtailing the federal bureaucracy’s power to interpret statutes—he means to pursue. This implied two sorts of departure from Antonin Scalia, the originalist he succeeded. Scalia deferred to both the executive and a tradition whereby justices reveal their thinking more in legal opinions than after-dinner speeches. Mr Gorsuch’s remarks—which even an approving legal scholar in the audience considered to be “tiptoeing the sideline” of propriety—augur a more activist approach.
The prospect of more ideological and active conservative judges is not intrinsically bad. The federal courts look stronger for including a range of legal philosophies. The problem is that conservatives are not striving for balance, but conquest. That is the logic of Mr Gorsuch’s divisive rhetoric. It is also Mr McGahn’s plan, encouraged by a president who cares not a whit for legal philosophy, but who has found his promise to appoint conservative judges to be uniquely effective and achievable.
With three liberal or moderate Supreme Court justices, Stephen Breyer, Ruth Bader Ginsburg and Anthony Kennedy, in or approaching their 80s, Mr Trump may well increase the court’s conservative majority. The lower federal courts are even more vulnerable to an ideological makeover. Because Republican senators refused to approve many of Barack Obama’s nominees, Mr Trump inherited many empty seats on the benches, which the Democrats’ decision to scrap the use of the filibuster in judicial appointments has made easy to fill. His administration has so far nominated 59 judges, three times as many as Mr Obama at the same point in his tenure, and with almost half of the 150 appellate judges of retirement age, it expects to nominate many more. Some ideologues are still unsatisfied; Steven Calabresi, a Federalist Society co-founder, suggests packing the federal courts with at least 260 new judgeships. Mr Trump’s recent boast that, “There has never been anything like what we’ve been able to do together with judges,” could prove to be unusually accurate.
It is hard to exaggerate how significant, divisive and fundamentally antithetical to the Federalist Society’s original purpose this project is. It represents an assault on the courts’ already-tested consensual traditions, which the next Democratic administration would naturally emulate, thereby dividing the courts even more nakedly along partisan lines and making judicial appointments even more politicised than they already are. The society’s founding mission was to defend the separation of powers: its extremism threatens to erode whatever open ground remains between the judiciary and elected branches. Bruce Ackerman, a legal scholar, predicts the federal courts are heading for a period of “hyper-politicisation” not seen since the 1930s, when Franklin Roosevelt went to war with the Supreme Court over its hostility to the New Deal.
This is not only bad for the courts. The irony of the Federalist Society’s pact with Mr Trump is that a movement dedicated to defending the constitution has enabled a president whose conflicts of interest, disregard for due process and disparagement of independent agencies and actors—including “so-called judges”—represent a grave constitutional threat. Conservative lawyers know this. Many have told Lexington of their unease with almost everything Mr Trump is doing outside judicial appointments. Yet instead of acting on principle, they keep raising the price of their support, and Mr Trump, who knows a good deal when he sees one, keeps paying the bill.