The Federalist Society's Influence on the Federal Judiciary

Abstract

Only twenty-five years after its founding, the Federalist Society today boasts a nationwide membership including renowned attorneys, politicians, policy makers, and jurists. Although the Society maintains that it is not a political organization, liberal political activists claim the Society has long pursued an ambitious—and extremely conservative—political agenda. In this article we ask: do members of the Federalist Society decide cases in a more conservative manner than other nonmember jurists? Using data on decision making in the U.S. Courts of Appeals, we find Federalist Society members are significantly more conservative than nonmembers and examine the long-term implications of our study.

Bias and the Bar

“…One possibility is that Democrats nominate less ideologically extreme nominees than Republicans. However, the results of model 4 reveal that our findings are robust even when we omit a subset of Republican nominees, Federalist Society members, who are likely to be viewed as ideologically extreme (Scherer and Miller 2009). Another possibility is that our measures of party and ideology capture the effect of a difference between Democratic and Republican nominees not contained in our model.…”

“… Model 2 and model 3 include all nominees from 1977 to 2008; model 4 includes all nominees other than Federalist Society members identified by Scherer and Miller (2009) from 1989 to 2005. Robust standard errors clustered on year of nomination were used, and p values reflect two-tailed tests. …”

“…28 Numerous Democratic senators and liberal activists claim that the Federalist Society and its members hope to instill conservative legal principles into the law (Benac 2005). Scherer and Miller (2009), examining the decision making of circuit court judges in states’ rights and search and seizure cases, find that Federalist Society members vote more conservatively than other Republican appointees. A possible implication of their finding is that Federalist Society members may be perceived as more “extreme” than other nominees by the ABA and consequently rated less positively.…”

Support Structures and Constitutional Change: Teles, Southworth, and the Conservative Legal Movement

“…One recent study on the decision‐making patterns of a subset of federal judges would seem to confirm this impression. Nancy Scherer and Banks Miller found that judges on the US courts of appeals who are self‐identified Federalist Society members decide cases in a more conservative manner than nonmember judges (Scherer and Miller 2009). Additional research detailing the relationship between this Federalist Society credential and particular judicial decisions would help to further illustrate the important relationship between the support structure and constitutional change.…”

On the Relationship between Public Opinion and Decision Making in the U.S. Courts of Appeals

“… 9. We recognize that the Giles, Hettinger, and Peppers (2001) scores are limited in that they oversimplify the complex nature of the selection process for appeals court judges and fail to incorporate changes that have occurred over time in the selection of these judges (e.g., Scherer and Miller 2009). While the Giles, Hettinger, and Peppers scores have the virtue of recognizing that presidents do not have a completely free hand in selecting appeals court judges when they must deal with a home state senator of their own party, they may mischaracterize the relative strength of the president and home state senators in terms of the negotiation over circuit court appointments (e.g., Sisk and Heise 2005, 784-85).…”