Justice  /  Explainer

How Conservatives Won the Battle Over the Courts 

The right has demonstrated that winning this kind of institutional fight takes years and requires a ruthless disposition.
Wikimedia Commons

The Federalist Society was careful to find people who could be counted on as solid conservative picks for the courts. It offered a social-professional network to connect young law students with influential senior mentors, such as the late Supreme Court Justice Antonin Scalia. Attorney General Edwin Meese provided support from within Ronald Reagan’s administration, encouraging the group’s efforts. Meese headed much of the administration’s selection of 400 federal judges, introducing a type of ideological profiling of potential nominees that made conservative criteria a determining factor. Meese’s insistence on the “jurisprudence of original intention” influenced many important figures, including Chief Justice John Roberts.

As Lawrence Tribe, a Harvard Law professor, told The New York Times in 2005, “Meese was successful in making it look like he and his disciples were carrying out the intentions of the great founders, where the liberals were making it up as they went along.” The marriage of Federalist Society ideas and Republican Party politics would continue. Lee Liberman Otis, a co-founder of the Federalist Society, gained a key role in George H. W. Bush’s White House Counsel’s Office and influenced judicial picks.The Federalist Society was not alone. Other organizations, such as the Institute for Justice and the Center for Individual Rights, joined this effort. Rightward philanthropists and organizations (Joseph Coors, Charles and David Koch, the Olin Foundation) poured money into certain law schools, such as George Mason University, whose faculty members were supportive of conservative ideas in their research and would train their students accordingly.

But President George W. Bush was the first Republican president to really elevate the Federalist Society to being the prime source of advice in his judicial selections. Although Leonard Leo, the Federalist Society’s executive director, who was deeply influenced by Meese, supported Bush’s 2005 nomination of his personal attorney Harriet Miers to the Supreme Court, most members of the society attacked the selection and successfully pushed for the nomination to be withdrawn. Her successor was Judge Samuel Alito, a favorite of the Federalist Society. “The Federalist Society was, when it got started, a wonderful idea,” Steven Calabresi, a law professor who worked for Presidents Reagan and George H. W. Bush, recounted to The New York Times in 2005. The organization achieved its goal in making “a lot of conservative thought seem as respectable and attractive as it is.” 

Collection

Originalism is Bunk

How origionalism dominates the supreme court