How the Federalist Society Won
A few minutes before the cancellation of Roe c. Wade, Sherif Girgis sat in his office at Notre Dame Law School, desperately clicking on the Supreme Court’s website. Girgis had been looking forward to this exact moment for months. He had been playing arguments for years, really.
Conservatives of an older generation, who suffered a betrayal on the Supreme Court in 1992 – when a trio of Republican-appointed justices upheld the constitutional right to abortion, in Planned Parenthood v. Casey – couldn’t believe that Roe would ever really fall. But Girgis, who is thirty-six, came at another time. “I was in kindergarten when Casey was decided on,” he said. Unlike his jaded elders, he believed that the Court would one day act on the simple and powerful idea that drives the conservative legal movement: that a judge’s job is not to pass value judgments or speculate on the potential consequences of his decisions. but rather to decide cases by examining only how the Constitution was understood at the time it was drafted. This method of interpretation, called originalism, would inevitably lead to the end of Roe.
Girgis, a professor specializing in philosophy and law, embodies a young, energetic, and traditionalist wing of the conservative legal movement that will likely be galvanized by Dobbs v. Jackson Women’s Health Organization, the decision that overturned the constitutional right to abortion. Early in his career, Girgis worked for Samuel Alito, the judge who wrote the majority decision in Dobbs. He is a rising star in the Federalist Society, a powerful network of conservatives and libertarians that has chapters at many major law schools, as well as dozens of professional chapters across the country. The organization prides itself on being a forum for ideas, even those some conservatives hate, which is part of what prompted Girgis to become a member when he was a student at Yale Law School in 2011. “The Federalist Society is not a ghetto. within every law school,” he said. “At best, he is – or should be – a happy, willing debate partner.” Girgis is a frequent speaker at chapter events. A long-time member described him to me as “a brilliant and beautiful soul”. One of his mentors, Robert George of Princeton – a heavyweight in the relatively small world of elite conservative academics – often beats him on Twitter, like a trainer cheering Rocky on in the ring.
In 1982, when the Federalist Society was founded, the legal conservative movement was still trying to gain a foothold. Law school campuses were overwhelmingly liberal, and there was a prevailing sentiment among students and faculty that Roe’s findings and other major Supreme Court decisions of the previous thirty years – on issues such as control births, racial integration and the right to vote – were both morally good and legally correct. But an ideological counter-revolution was beginning. Lee Liberman Otis – one of the founders of the Federalist Society, who was then a law student at the University of Chicago – remembers thinking, it’s funny that there are these ideas about the law that Reagan seemed to to have run, in part, and nobody talks about it. their. She helped organize the first conference of the Federalist Society; its speakers included Antonin Scalia, then a law professor, and Theodore Olson, then an assistant attorney general in the Reagan administration. Otis could tell the conference was the start of something. Four years later, Scalia would ascend to a seat on the Supreme Court, and Olson would eventually become one of the nation’s most accomplished Supreme Court litigants.
“I don’t recall Roe being an issue in any such conversations I’ve had regarding [the] creation of Fed Soc,” Olson wrote to me in an email. “It was about creating a forum/place for debate. Do not take sides on a particular issue. And yet, Roe symbolized something for the founding members of the Federalist Society. “For someone like me, a lawyer, Roe really wasn’t about abortion,” said John McGinnis, a conservative law professor at Northwestern University. (McGinnis was an early member of Harvard’s Federalist Society chapter, back when he could fit in a “broom closet,” he said.) Roe, did I he says, “was the acme of the Court diverging from the text of the Constitution and essentially — that’s not too strong a word — fabricating the law. One of the core tenets of the decision, that abortion should remain legal before the point of fetal viability, seemed to conservatives to be summoned out of nowhere. Some prominent leftist jurists, while pleased with the outcome of the decision, said the same: John Hart Ely said Roe was “not constitutional right and makes almost no sense of the obligation to try to be. (The current conservative majority on the Court happily quoted this line when reversing Roe.)
Over the next four decades, the conservative legal movement set out to radically change the way the law was talked about. They promoted a supposedly value-neutral mode of legal interpretation based on their understanding of what the Founders wrote. The movement’s most powerful tool was its people: The Federalist Society began to operate as a sort of Rolodex for legal jobs nationwide, especially internships and judgeships. And yet, the process was slow. In 1987, the United States Senate rejected the Supreme Court nomination of Robert Bork, an early figure in the Federalist Society, based in part on his strong opposition to the Civil Rights Act of 1964. Ties to the society drifted left during their tenure, siding with their liberal peers in Casey, as well as Sandra Day O’Connor, Reagan’s first nominee to the Court. Slowly, however, the quirky judges began to sit down. Today, the six members of the Conservative majority all run in Federalist Society circles. All voted to effectively end federal abortion rights that have been in place for fifty years.
The Dobbs case also illustrates the broader influence of the Federalist Society beyond judicial appointments. The conservative movement now has a legal intelligentsia of scholars, writers and national advocacy groups who fundamentally shaped how Roe was overthrown. The Alliance Defending Freedom (ADF), a conservative Christian law firm, helped Mississippi lawmakers draft the fifteen-week abortion ban that eventually made its way to the Supreme Court, which justices upheld in Dobbs then went on to serve alongside Mississippi’s legal team as he presented his case to the court. ADF general counsel Kristen Waggoner, a member of the Federalist Society, told me the firm was closely monitoring the abortion scholarship while shaping Mississippi’s litigation strategy, which was led by another regular at the Federalist Society, Mississippi Solicitor General Scott Stewart. The Court is also dependent on this scholarship; the Dobbs decision is fraught with footnotes debating the details of how abortion has historically been viewed. For Girgis, whose own scholarship has touched on such topics as the nature of marriage, religious liberty and constitutional principles, here is what is compelling about his work: “The law academy is not like other academic disciplines , because it is linked to the reality of the world in a very concrete way,” he said. “He is at least supposed to serve the bench and the bar.” Dobbs is exciting, he added, in part because he shows that “a theory of interpretation can in fact lead to concrete results.”
While originalism may seem intuitive and straightforward, many in the legal world feel cynical about its true purposes. Critics of the conservative legal movement view the approach as a theoretical fig leaf used to justify decisions that align with conservative policy preferences. When I asked Girgis about it, he told me that originalism is meant to accomplish the opposite: it’s a way to ensure that the law doesn’t just reflect the preferences of the ruling party. (Or, as Girgis put it, to ensure that judges “don’t cheat.”) Dobbs was satisfactory, in his view, precisely because he was argued according to an established legal theory that has clear rules and few room for a personal opinion. For Girgis, it is not a sign of bad faith that originalist decisions often lead to conservative results, since both are philosophical approaches steeped in the past.
Yet other critics believe that originalism, even when applied in good faith, often has unacceptable adverse consequences. The dissent of the three liberal justices in Dobbs is in part a scathing critique of the originalist approach: the founders, they write, “did not recognize women’s rights. When the majority says that we must read our founding charter as it was at the time of ratification. . . it locks women into second-class citizenship.
Conservatives do not always agree on how to apply originalism. For example, Neil Gorsuch, the original star who replaced Scalia, authored the 2020 ruling that extended workplace protections to LGBTQ employees. In the opinion, joined by Chief Justice John Roberts and the Court’s liberal justices, Gorsuch made his case on strictly textual grounds, but the result upset many conservatives who believed the anti-discrimination laws of 1960s had never been designed or understood to protect gay and trans people. During the same term, Roberts held back Roe’s overthrow out of a desire for the Court to exercise restraint, despite the movement’s eagerness to see that decision in the ash heap of history; he continued to make his unease clear in his deal with Dobbs, even though the majority rejected it.