In spite of all this nonsense from the left, we are going to win. We are in the process of taking this country back. […] We are in the process of the second American revolution, which will remain bloodless, if the left allows it to be.
– Kevin Roberts, President of the Heritage Foundation, July 2024
In 1982, the Federalist Society was founded by a group of conservative law students. Its aim was to challenge what they perceived as a liberal agenda in schools, government agencies, and courts. By 2019, they had reached what the Washington Post dubbed an “unprecedented peak of power and influence.” On today’s Supreme Court five of the nine Justices are current or former members of the Society: Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett. The only conservative Justice missing from the Federalist’s list is John Roberts, who held positions in Reagan and G.H.W. Bush’s administrations, both conservative Republicans.
Leaving John Roberts aside, let’s look at the Federalist Society that brought up the other five conservative Justices to this point. The Federalist Society likes to play at being libertarian and demanding equal division of powers. “The separation of governmental powers is central to our Constitution,” so says their website. Yet, the Justices they brought into being just dumped a heavy load of power onto the executive and judiciary at the expense of Congress.
So, what are we looking at? The Federalist Society was started with a grant from the Olin Foundation. John M. Olin was a staunch conservative and president of Olin Industries, which manufactured chemicals and munitions. His foundation was started in 1953 and directly financed the startup of the Federalist Society as a way of raising generations of conservative lobbyists, lawyers, judges, and Justices. Olin and conservatives like him hated the American state apparatus post-New Deal. The rich had to pay more taxes, workers were entitled to more rights and, because of the advances of the working class, the wage gap was much smaller (in 1960 a CEO made roughly 22 times more than a typical worker. By 2022, CEOs made 344 times more than a typical worker). The Federalist Society, in turn, has fought against environmental rights, workers’ rights, and governmental regulatory powers. In short, the Federalist Society has fought for the supremacy of private business over the rights and well-being of American citizens.
It took years, but eventually the Federalist Society got plenty of judges onto federal circuit courts and the Supreme Court. Through appointments made by Reagan, George H.W., and George W., the Federalist Society saw an influx of federal judge appointments. But, it wasn’t until Trump when they saw their pay day. “Approximately 90% of Donald Trump’s appointments to the federal judiciary are or were members of the Federalist Society,” according to Bloomberg Law.
So, is it no coincidence that now, when we see a Supreme Court run by Federalist Society appointees, there are a number of rulings that tear at the fabric of American society and legal precedent? One of the first major blows was in 2018 with the Janus v. American Federation of State, County, and Municipal Employees Council ruling. With Federalist Society Justices Alito, Thomas, and Gorsuch in the majority, SCOTUS ruled 5-4 that unions representing public workers were not permitted to require union fees by workers. This overruled a long respected precedent set in 1977 by the Abood v. Detroit Board of Education decision. It would not be the last time this new radically reactionary Supreme Court overturned precedent.
For example, Roe v. Wade in 2022’s absurd case Dobbs v. Jackson Women’s Health Organization. Scotus basically ruled that pregnant people in the U.S. do not have a right to abortion, and instead left it up to states whether they would allow abortions within their territorial domains. And, in doing so, the court stripped a person’s right to bodily autonomy.
The Federalist Society Justices have also been doing their best to strip federal agencies of their powers, transferring it over to the courts. Earlier this year, in Loper Bright Enterprises v. Raimondo, our conservative Supreme Court held that courts should not defer to agencies’ expertise. Instead, judges should take the reins and rule as they see fit. There are a number of other rules that limit federal regulatory powers: SEC v. Jarkesy, Ohio v. EPA, and Corner Post v. Board of Governors of Federal Reserve System.
Most recently, the Federalist Society Justices have stepped way out of bounds by vastly expanding the immunity powers of the President in Trump v. United States. After Donald Trump pressured Vice President Pence to overturn the results of the 2020 presidential election, and encouraged supporters to protest at the Capitol in order to get his way, he was brought up on a number of charges. These include obstructing an official proceeding, defrauding the U.S., and conspiracy against rights. However, on July 1st, 2024, SCOTUS decided by a 6-3 decision along partisan conservative lines that Presidents are suddenly granted immunity for actions committed while within their official capacity. This has no precedent, and signals a clear shift in the Supreme Court’s approach to law in the United States. Before this, no one was above the law. Now, the President is above the law. What to take from this?
REACTIONARY PERSONALITIES
There is a revolution taking place quietly under our very feet. There are other decisions to be cited, but the above is enough to show that the current Supreme Court is making it up as it goes along. Ignoring past precedent, the conservative majority is taking it upon itself to reshape the American political playing field as it best suits conservatives’ interests. This isn’t just a natural shift that comes along with a majority switching between liberal and conservative. This has been a tidal change the likes we have never seen. So, it behooves us to at least look at two of the institution’s most belligerently partisan Justices.
Samuel Alito
Here’s a man who has happily accepted luxurious vacations paid for by conservative interests. A devout Catholic who has made no mystery regarding his personal stances against same-sex marriage and abortion. And, while these are worrisome, and Justices should be able to put personal biases aside during federal proceedings, Alito has gone further. His family has flown upside down American flags outside of their homes (a symbol that America is in distress), and he has refused to recuse himself from the immunity case against Trump, despite a mountain of evidence suggesting he should. And why has he done all this?
It’s merely speculation, but Alito comes from a staunchly conservative background and was supported by the Federalist Society. The Federalists have an agenda, largely shared by Alito. For this Justice, it appears as though partisan agenda comes before precedent. They are willing to put aside decades of deliberations in order to ring in a new order of conservative values that will help the rich and hurt the working class. As he was quoted in Lauren Windsor’s undercover audio, “One side or the other is going to win.” Alito clearly is on a mission that only sees black and white, and he has the inability to judge nuance case by case. He is on the track to create a reactionary revolution in order to bring down anything and everything liberal.
Clarence Thomas
This man loves favors. He can’t get enough. His acceptance of gifts and luxury trips was the impetus for SCOTUS laying down some toothless rules around what Justices should or should not accept. But, did that cause him to recuse himself from Donald Trump’s case regarding immunity? Of course not. Thomas narrowly got through a nomination process after he was accused of sexually harassing a worker underneath him. Since then, he has gone on to be the beacon for all conservative efforts before the court, eagerly writing dissenting opinions throughout the ‘90s and early 2000’s. And now that the Federalist Society bloc has taken over, he has been loud and proud in his conservative decisions, siding against labor, against a person’s bodily autonomy, against democracy, and more. This is his moment to shine, and with his age progressing day after day, his itching to get reactionary rulings fixed before he goes is likely only to grow stronger.
REACTIONARY REVOLUTION
It isn’t just Sam Alito and Clarence Thompson we should be worried about, though. The Federalist Society also produced Gorsuch, Kavanaugh, and Barrett. And, even though Roberts isn’t a Federalist alum, he’s still very much in the conservative camp. There is a solid 6-3 imbalance on SCOTUS right now, favoring the radical conservatives. Sure, Roberts can be swayed here and there, but it isn’t enough to make a dent. What is underfoot is a conscious rebellion against a perceived liberal administrative state. The conservative establishment hates what it sees as a regulatory system. It identifies freedom with the freedom to exploit. Regulations curb exploitation, and therefore must go. The Federalist Society has worked decades trying to get their preferred legal minds behind benches, and now they’ve succeeded. It’s a revolution, whether they admit it or not. In fact, they have said it. Kevin Roberts, head of the radically conservative Heritage Foundation, said so himself. “Americans in 2024 are in the process of carrying out the second American Revolution to take power back from the elites and despotic bureaucrats.” He said these remarks in the wake of the Supreme Court’s ruling that Presidents are immune from criminal prosecution for acts committed in an official capacity. Radical right-wing conservatives are calling it a revolution! Why do the rest of us not take them at their word and react accordingly? It’s the kind of top-down revolution that reactionaries love. And it won’t stop until we take back control of our courts.
Will you see it as such? Will you accept that there is a quiet reactionary revolution happening under our noses? There is little time left. They have already turned back labor laws, regulation laws, sexual orientation and bodily autonomy laws. What will it take for you to not just open your eyes, but step up? We only have one tool that cannot be taken away, our voice.
Join the Democratic Socialists of America. Help us combat conservative offensives and liberal paralysis. There is no one coming to save us but us. We can only do it together.
