I’m being dragged plenty for my post on the Federalist Society, but I nonetheless wanted to return to the topic for a moment because of this recent piece by my colleague Geof Stone. In the course of a review of a forthcoming book by Ruth Marcus, Geof writes:
Another constituency with supreme ambition was the Federalist Society. Founded in 1982 with the active support of such figures as Antonin Scalia and Robert Bork, then professors at the University of Chicago and Yale, respectively, the society’s initial goal was to articulate a coherent conservative approach to constitutional interpretation. Over time, though, and under the leadership of Executive Vice President and Co-Chairman Leo, the ambition of the Federalist Society became less academic and more political. Its supreme ambition was to stack the courts, and especially the Supreme Court, with jurists who would support a rigid right-wing agenda.
Although it tossed out theories like judicial restraint and originalism, over time the true measure of a successful judicial appointment from the perspective of the Federalist Society turned on results. The group sees things this way: Affirmative action is unconstitutional. There is no constitutional right to abortion. The Voting Rights Act is unconstitutional. Gerrymandering is not unconstitutional. Laws limiting campaign contributions and expenditures are unconstitutional. There is no constitutional right to same-sex marriage. Laws regulating guns are unconstitutional. And on and on and on. These outcomes have nothing to do with constitutional theory and everything to do with political goals.
This is the kind of analysis that prompted my original post. “The group” doesn’t have a uniform view on any of these topics. And the individual members of those groups that I know have views that are based on about what you'd expect -- some of the more theoretically minded members follow constitutional theory where it leads them, some of the more politically driven members are likely driven by political goals. But indeed, that's probably true of every group of lawyers or academics.
For what it’s worth, of the seven constitutional positions Geof lists above, and putting aside stare decisis, I think I agree with only about four and a half of them.