How the Federalist Society Stole the Federal Judiciary, Conquered Washington DC, and Imperiled the Nation
This is essay #2 of a multi-part series about how the remarkable political and legal influence of the Federalist Society in the Trump era – what I call a “court-jacking” – illuminates the emerging civilizational conflict between competing cosmologies, represented by natural law moral philosophy and complexity science.
The Law as Society’s “Operating System”
One perspective on the laws of a society is that they exist to organize and coordinate the complex interactions and transactions of that society. For this reason, complexity science scholars have in recent years proposed that we adopt the analogy of a software operating system, like Windows or iOS, to frame and unpack the functions and design of legal systems. If the layered, parcelized, and distributed laws of the United States – scaling from municipalities to counties, to states, to the entire nation – together comprise the operating system of the nation, the jurisprudence of the federal court systems in the United States governs the “upgrade cycle” or “version updates” of this operating sytem, establishing the tilt of the laws and their execution.
Unlike United States congressional representatives, Senators, and the president, all of whom are elected to fixed terms in office, Article III judges – Supreme Court, circuit (appeals) court, and district (trial court) judges – are appointed by the president and confirmed by the Senate. Unlike cabinet secretaries and other appointed executive branch subalterns, Article III judges serve lifetime appointments (or, in the felicitous language of the Constitution, “for good behavior”). Absent felonious instincts of enormous magnitude (perhaps, for example, acting on the impulse to shoot someone on the streets of New York), it is nearly impossible to remove Article III judges from office.
As Alexander Hamilton instructs us in The Federalist, one goal of these personnel selection distinctions within the three branches of government is to remove the nation’s legal infrastructure from the short-term whims and vagaries of personal or partisan political considerations that generally (and in some ways by design) interpenetrate legislative and presidential elections. And one effect of this specific limit to the accountability of federal judges created by lifetime appointment has been the development of norms and customs surrounding the nomination and confirmation process designed to remove at least some of the political or partisan edge that might therefore surround the appointment and confirmation process. We may count open-ended White House sourcing of judicial candidates, home-state senatorial (or “blue slip”) courtesy, and the judicial filibuster as instances of the norms and customs that have contributed to the institutional legitimacy of the federal courts.
Federal courts, of course, have been, by design, arbiters of the nation’s most contentious and difficult challenges, across every dimension of public life. The durable and anchoring impact of their decisions on fundamental matters of constitutional interpretation has reflected a bias toward legal precedent (stare decisis) that judges appointed by Democratic and Republican presidents alike have tended to respect and value. After discounting for regional variations (courts in Southern locations, in particular, have tended to reflect the more retrograde biases of the region’s white population), this widely shared judicial commitment to legal precedent has, over time, immunized the federal courts from any widespread sense of pervasive political or partisan bias.
Since May of 2017, however, in a span of only 30 months, with barely a smidgen of electoral advantage, the Republican Party has transformed the composition of the federal judiciary, and locked into federal jurisprudence a narrowing, twisted window of possibility for the next half century, no matter the degree to which the Democratic Party might going forward control the legislative and executive branches of the federal government. To continue with the operating system analogy, the impact of these changes to the composition of the federal courts will dramatically influence the upgrades to the nation’s legal source code, certainly in terms of the instructions it sends to the nation, but perhaps also in terms of the quality, durability, reliability, and security of this source code.
Here is another way to understand the magnitude of this transformation. We have a Republican president elected with only a minority of the national vote (with a total of 50,000 votes in three key states – Pennsylvania, Michigan, and Wisconsin – sealing the outcome). We have a Republican Senate subsisting with a quite slender numeric majority (also based, because of the vagaries of the electoral college, on a minority of the votes cast nationally). But because of a single variable – the influence of the Federalist Society – the 2016 election has set in motion a chain of outcomes, likely stretching deep into the future, that we can associate with the nonlinear dynamics (or butterfly effects) of chaos theory and complexity science.
Let’s call this variable – the influence of the Federalist Society – a perturbation, a tiny rupture of the fabric of the nation’s political and legal institutions. The next essay in this series will try to explain this rupture, and its cascading impacts, by spotlighting specific qualities of the Federalist Society, embedded in its DNA – ideological purity, intellectual intensity, organizational virtuosity, political savvy, and sophisticated planning – that allowed this outwardly staid and modest professional association for lawyers to court-jack the nation.