How the Federalist Society Won

How the Federalist Society Won

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A few minutes before Roe v. Wade was overturned, Sherif Girgis sat in his office at Notre Dame Law School, desperately clicking refresh on the Supreme Court’s Web site. Girgis had been looking forward to this precise moment for months. He’d been gaming out the arguments for years, really.

Conservatives of an older generation, who suffered a Supreme Court betrayal in 1992—when a trifecta of Republican-appointed judges upheld the constitutional right to an abortion, in Planned Parenthood v. Casey—couldn’t believe that Roe would ever truly fall. But Girgis, who is thirty-six, came up in a different era. “I was in kindergarten when Casey was decided,” he said. Unlike his jaded elders, he believed that the Court would one day follow through on the simple, powerful idea that animates the conservative legal movement: that a judge’s job is not to make value judgments or to speculate about the potential consequences of his or her decisions but, rather, to decide cases by looking solely at how the Constitution was understood at the time it was written. This method of interpretation, called originalism, would inevitably lead to the end of Roe.

Girgis, a professor who specializes in philosophy and the law, embodies a young, energized, 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 clerked for Samuel Alito, the Justice who wrote the majority decision in Dobbs. He’s a rising star in the Federalist Society, a powerful network of conservatives and libertarians that has a chapter 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 which some conservatives hate, which is part of what drew Girgis to become a member when he was a student at Yale Law School, in 2011. “The Federalist Society is not a ghetto within each law school,” he said. “At its best, it is—or ought to be—a cheerful and willing debating partner.” Girgis is a frequent speaker at chapter events. A longtime member described him to me as a “brilliant, beautiful soul.” One of his mentors, Princeton’s Robert George—a heavyweight in the relatively small world of élite conservative academics—frequently hypes him on Twitter, like a coach cheering on Rocky in the ring.

In 1982, when the Federalist Society was founded, the conservative legal movement was still finding its footing. Law-school campuses were predominantly liberal, and there was a prevailing sense among students and professors that the conclusions in Roe and other major Supreme Court decisions of the prior thirty years—on issues such as birth control, racial integration, and voting rights—were both morally good and legally correct. But an ideological counter-revolution was beginning. Lee Liberman Otis—one of the Federalist Society’s founders, who was then a law student at the University of Chicago—recalled thinking, It’s funny that there are these ideas about law which Reagan seemed to have run on, in part, and nobody’s talking about them. She helped organize the first Federalist Society conference; its speakers included Antonin Scalia, then a law professor, and Theodore Olson, then an Assistant Attorney General in the Reagan Administration. Otis could tell that 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 country’s most accomplished Supreme Court litigators.

“I don’t recall Roe being an issue in any such conversations I had concerning [the] creation of Fed Soc,” Olson wrote to me, in an e-mail. “It was all about creating a forum/venue for debate. Not taking sides on any particular issue.” And yet Roe symbolized something to the Federalist Society’s founding members. “For someone like me, a lawyer, Roe was really not about abortion,” John McGinnis, a conservative law professor at Northwestern University, said. (McGinnis was an early member of Harvard’s Federalist Society chapter, back when it could fit in a “broom closet,” he said.) Roe, he told me, “was the culmination of the Court diverging from the text of the Constitution and essentially—this is not too strong of a word—fabricating the law.” One of the core holdings of the decision, that abortion had to remain legal before the point of fetal viability, seemed to conservatives to be summoned out of thin air. Some prominent left-leaning legal scholars, despite being pleased with the outcome of the decision, said the same: John Hart Ely commented that Roe was “not constitutional law and gives almost no sense of an obligation to try to be.” (The current conservative majority on the Court happily cited this line when overturning Roe.)

During the next four decades, the conservative legal movement set about radically changing the way that the law was talked about. They promoted a mode of legal interpretation that was purportedly value-neutral, based on their understanding of what the Founders wrote. The movement’s most powerful tool was its people: the Federalist Society started functioning as a kind of Rolodex for legal jobs around the country, especially clerkships and judgeships. And yet the process was slow going. In 1987, the U.S. Senate rejected the nomination of Robert Bork, an early Federalist Society figure, to the Supreme Court, based in part on his strong opposition to the Civil Rights Act of 1964. Anthony Kennedy and David Souter—Republican appointees without strong Federalist Society ties—drifted to the left during their time on the bench, siding with their liberal peers in Casey, along with Sandra Day O’Connor, Reagan’s first nominee to the Court. Slowly, though, originalist Justices started taking their seats. Today, all six members of the conservative majority run in Federalist Society circles. All voted to effectively end the federal abortion rights that have been in place for the past fifty years.

The Dobbs case also illustrates the Federalist Society’s broader influence beyond judicial appointments. The conservative movement now has a legal intelligentsia of academics, writers, and national advocacy groups who fundamentally shaped how Roe was overturned. The Alliance Defending Freedom (A.D.F.), a conservative Christian legal firm, helped Mississippi legislators draft the fifteen-week abortion ban that eventually made its way to the Supreme Court, which the Justices upheld in Dobbs, and then later served alongside Mississippi’s legal team as it presented its arguments to the Court. A.D.F.’s general counsel, Kristen Waggoner, a Federalist Society member, told me that the firm closely monitored the scholarship on abortion while shaping Mississippi’s litigation strategy—which was led by another Federalist Society regular, Mississippi’s solicitor general, Scott Stewart. The Court depends on this scholarship, too; the Dobbs decision is heavy with footnotes debating the minutiae of how abortion was historically viewed. To Girgis, whose own scholarship has touched on subjects such as the nature of marriage, religious liberty, and constitutional principles, this is what’s compelling about his job: “The legal academy is not like other academic disciplines, because it is tied to the real world in a very concrete way,” he said. “It’s at least supposed to be serving the bench and bar.” Dobbs is exciting, he added, in part because it shows that “a theory of interpretation can actually lead to real-world results.”

While originalism may sound intuitive and straightforward, many in the legal world feel cynical about its true aims. Critics of the conservative legal movement view the approach as a theoretical fig leaf used to justify decisions that line up with conservatives’ policy preferences. When I asked Girgis about this, he said that originalism is supposed to achieve the opposite: it’s a way to make sure the law doesn’t just reflect the preferences of the ruling party. (Or, as Girgis put it, to guarantee that judges “don’t cheat.”) Dobbs was satisfying, in his view, precisely because it was argued according to a set legal theory that has clear rules and little room for personal opinion. To Girgis, it’s not a sign of bad faith that originalist decisions often reach conservative outcomes, because both are philosophical approaches anchored in the past.

Still, other critics believe that originalism, even when applied in good faith, often has unacceptably harmful consequences. The three liberal Justices’ dissent in Dobbs is in part a scathing critique of the originalist approach: the Founders, they wrote, “did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification . . . it consigns women to second-class citizenship.”

Conservatives don’t always agree on how originalism should be applied. For example, Neil Gorsuch, the originalist all-star who replaced Scalia, wrote the 2020 decision that extended workplace protections to L.G.B.T.Q. employees. In the opinion, joined by Chief Justice John Roberts and the Court’s liberal Justices, Gorsuch made his argument on strictly textualist grounds, but the outcome rankled many conservatives who believed that nineteen-sixties-era anti-discrimination laws were never intended or understood to protect gay and trans people. During the same term, Roberts put the brakes on overturning Roe out of a desire for the Court to practice restraint, despite eagerness from the movement to see that decision in the ash heap of history; he continued to make his uneasiness clear in his concurrence in Dobbs, even as the majority overruled him.

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