In 1982, dismayed by the march of liberalism and the expansion of government in the 1960s and 1970s, a group of law students and scholars from Harvard, Yale, and the University of Chicago founded the Federalist Society.
Among them, Antonin Scalia, who would sit on the Supreme Court from 1986 until his death in 2016.
Its members believed that the judiciary had no role in interpreting the constitution beyond seeking to understand and reflect what its framers had intended when they drafted the document in 1787.
This idea became known as originalism or constitutional literalism, and for years its proponents were dismissed as eccentrics by the American legal establishment.
It was, after all, pretty clear to most observers why the Founding Fathers did not address in the constitution issues such as the federal government’s right to regulate carbon emissions through the Environmental Protection Agency. in order to combat climate change.
But the Federalist Society found powerful friends among the political right—which believed in small government—and among the movement’s wealthy backers.
Early donors included the Koch Family Foundations, established by the oil-rich family, which has long supported small government and libertarian causes.
By the time George W Bush took office in 2001, the Federalist Society was influential in conservative politics. W’s administration routinely appointed its members to the Federal Court benches.
Today, the group has 70,000 members and chapters in 200 US law schools.
As the Federalist Society set out to reshape the court system, the Republican Party focused on the Supreme Court itself.
Ronald Reagan was the first president to fully understand the raw political power of the Roe v Wade decision.
He realized that the support of Catholic and Baptist voters, who had not traditionally voted as a bloc, could be secured by a party willing to champion this single issue.
In 2016, evangelical preachers urged their flock to vote for Donald Trump on the grounds that he would appoint Supreme Court justices who would ban abortion.
Trump, you will recall, is a man who, in a 2015 interview, said the Bible was his favorite book, but couldn’t name a verse from it. “The Bible means a lot to me, but I don’t want to go into details,” he said.
It was under the Trump administration that the Republican Party’s ruthless determination to create a conservative bloc on the Supreme Court was revealed most clearly.
In the last year of the Obama administration, Scalia died and Obama appointed a replacement, the famous moderate jurist Merrick Garland, who is now attorney general.
In order to prevent a Democratic president from making a court nomination as dictated by the constitution, Republican Senate Majority Leader Mitch McConnell even refused to grant Garland a confirmation hearing.
He argued that because Obama was up for re-election in a year, the nomination should be postponed until the next president is elected to give voters a chance to have their say.
In 2020, when Judge Ruth Bader Ginsburg died four months before the end of Trump’s term, McConnell shamelessly accelerated confirmation hearings for Amy Coney Barrett, a frontrunner on the Christian right.
The Republican Party’s desire to forge a court in its image has worked. As writer David Daley notes, five of the six conservative justices on the current bench were appointed by presidents who lost the national popular vote, and although Republicans have won that popular vote only once since 1988 , they named 16 of the last 20 judges. .
It is the court that is radically reshaping American society in accordance with its own originalist worldview. As a result, laws drafted to address life in a modern world are assessed against the standards enshrined in a 250-year-old legal document.
This week we saw the obvious results. Firearms are addressed in the constitution, so they are in it. Abortion is not, therefore it is prohibited.
That point was addressed this week in the grim dissent written by the court’s three remaining liberal justices, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, who noted that the framers of the constitution “did not view women as equal and did not recognize the status of women. rights.”
“With sadness — to this Court, but more so, to the many millions of American women who today have lost fundamental constitutional protection — we disagree,” they wrote.
It is not yet clear to what extent the decisions made by the court in recent days will affect. By reducing the EPA’s power to regulate carbon emissions, the court opened the door to challenges to the work of a range of federal government agencies.
In his concurring opinion knocking Roe, Judge Clarence Thomas bluntly states that the court should in future reconsider decisions granting access to contraception, same-sex sex and same-sex marriage.
As the court became radicalized, its popularity plummeted. While he was once widely seen as sitting gracefully above partisanship, today he is increasingly seen as a political player. The concerns of the originalists are, after all, oddly in line with those of the modern Republican Party.
Shortly after a preliminary version of the court ruling overturning Roe was leaked in May, a Gallop poll found confidence in the court had fallen to an all-time low. In 1988, 56% of those polled said they had a lot or quite a lot of faith in the court. Today, that figure is 25%.
The court is out of step with Americans on abortion, which is supported by 60% of Americans. On firearms, he is out of step with New Yorkers, 76% of whom supported their state’s concealed carry law.
More dangerously for the moral authority of the court, and thus for the stability of American democracy, the court is increasingly seen as acting in concert with a Republican party whose concerns oddly align with those of the originalists.
The political implications of this situation are not yet clear.
Although he did more than any other individual to shape the court that overthrew Roe, Trump himself is aware of the dangers of victory.
For more than a generation, abortion has been the North Star that has kept the Christian right in line with mainstream Republicans. It’s possible that with Roe off the table, their loyalty will wane.
Last week, The New York Times reported that Trump had privately told supporters that he feared the issue would now become an equally powerful campaign tool for the Democratic Party.
It also remains to be seen how long Americans will tolerate a Supreme Court bound by an ideology so out of step with the concerns of modern life.
Revered as the founding fathers were, ancestor worship is hardly a unifying theory of governance.
Down the hill from the Supreme Court is the Jefferson Memorial and etched in its walls is a quote from a letter he once wrote to a friend, evidence that he too feared the authority of the founding fathers will ever stretch too far.
“We might as well require a man to still wear the coat that suited him as a boy, or a civilized society to remain forever under the rule of their barbarous ancestors.”