A Right Judgment
In the early years of Barack Obama’s second term, I took part in a Federalist Society program entitled Shakespeare and the Law. The idea was to have members of the legal profession willing to risk public spectacle (a large majority) take part in readings, followed by a panel discussion of legal issues raised in particular Shakespearean works.
The Federalist Society, founded in 1982, advertises its purpose as nurturing conservative lawyers and counteracting the danger of a liberal bias it detects in the nation’s law schools. Now, as it did then, the Society’s website commends itself for having “redefined the terms of legal debate” by “providing a forum for legal experts of opposing views to interact with members of the legal profession.” My experience differed.
More recently the Society has become a judicial gatekeeper. Even before he assumed office, Donald Trump announced his plan to privatize the selection of federal judges by outsourcing it almost exclusively to the Society. Despite its well-publicized role guarding the velvet rope line for federal judges, the Society website declares: “We do not … sponsor or endorse nominees and candidates for public service.”
My star turn was the role of Shylock. The Merchant of Venice, as it turns out, is a distillation of trends that have become depressingly familiar in the last few years – sophistry, intolerance, and greed. While greed seems to have been largely monopolized by the executive and legislative branches (campaign funding, tax cuts, emoluments clause abuses, insider trading, etc.), the other two themes figure large in a federal court system populated by an increasing number of Federalist Society members.
Sophistry
Portia, disguised as a learned “doctor of the law,” famously defeats Shylock’s insistence on specific performance of his loan contract by ruling that obtaining a pound of flesh, the penalty for non-payment, is precluded by the condition that he not draw so much as “a drop of blood.” Shylock’s defeat is obviously welcome, as the preposterous penalty inserted into the contract by Shakespeare is a theatrical device, itself ludicrous. But the same cannot be said of the United States Constitution, however ambiguous or flawed certain passages have proven over two centuries.
Our modern Portia, Federalist Society favorite and now Supreme Court Associate Justice Amy Coney Barrett, touts herself as a “textualist” in the image of a former Society member, her mentor Antonin Scalia. Her confirmation hearing sales pitch was that a judge need only read the language of a statute (or constitutional provision or contract) to decide a case. This approach has the advantage of simplicity and avoids some of the obvious defects of the term “originalism” (under which theory, for example, the Air Force, established in 1907, is unconstitutional).
Textualism, like its parent ideology originalism, is a fraud. In a 2010 Harvard commencement address, former Justice David Souter made quick work of it. You don’t have to be a constitutional scholar to understand his points.
Consider the First Amendment. “Congress shall make no law….abridging the freedom of speech.” Here, the textualist approach makes for a short workday. After all, no law means… no law. An awkward problem, however, is created by the Constitution’s preamble that spells out its purposes, including “to ensure domestic tranquility” and “provide for the common defense.” These goals require restricting speech through the classification of information by intelligence and law enforcement authorities. Nor does the First Amendment protect speech inciting a mob to storm the United States Capitol and attack members of Congress, just to provide a wild example. Oliver Wendell Holmes’ famous example of shouting fire in a crowded theater seems positively quaint today.
The point here is that there are competing values in our founding documents. To earn their pay, judges must deal with these inherent tensions, evaluate the stakes on a case-by-case basis and make choices, sometimes hard choices.
Another example raised by Justice Souter is Brown v Board of Education. The Fourteenth Amendment prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws.” The Supreme Court’s ruling in Brown that school segregation violated this clause is based on a nuanced and multi-disciplinary consideration of the deleterious effect of classifying some citizens, especially children, as “different” and keeping them apart from other Americans, even if they were otherwise accorded entirely “equal” rights, benefits, and facilities.
Textualists would have us believe that words provide the answer. As in the case of “a pound of flesh,” they very often just pose the question. In this, law and literature overlap.
Intolerance
The debate over antisemitism in The Merchant of Venice has been alive for four centuries, dividing scholars between those who believe Shakespeare was endorsing antisemitism and those who think he was exposing it. The former emphasize the plot. Shylock, convicted of conspiring against a Venetian citizen, risks the loss of his entire estate. He is allowed to retain half his possessions, but only by converting to Christianity. On the other side of the argument, we cannot deny the eloquence and sympathy of many passages: “Hath not a Jew eyes…hands…senses..?”
For our purposes, it is sufficient to note that ambiguity in the expression of racial and ethnic bigotry, prejudice, and general intolerance remains alive and well today. It is true, of course, that the tiki-torch carriers in Charlottesville and elected officials who indulge in dog whistles are barely bothering to dissemble. However, decisions authored by judges who are members of the Federalist Society fall into a more ambiguous category.
The assortment of lawsuits collectively known as the Muslim ban cases arrived in the courts hard on the heels of the 2016 election. Initially, the Trump legal team was so inept that it was unable to articulate even a facially valid justification for a ban. Eventually however, by bothering to read the numerous district and circuit court decisions tossing out their previous attempts, the administration obtained a 5-4 Supreme Court decision in its favor authored by Chief Justice John Roberts. (Roberts claims not to be a Federalist Society “member.” The Society’s Lawyers Division Leadership Directory, 1997–1998, listed Roberts as a member, not of the Society, but of the Washington chapter Steering Committee. Reader, you decide.)
A claim of discrimination can be disproved by a legitimate governmental purpose even if the outcome affects a protected class such as, in this case, a religious group. The assertion of a legitimate purpose, here national security, can in turn be defeated if it is shown to be a pretext. Pretext involves a state of mind, rarely susceptible to direct evidence but able to be inferred by statements and actions. In considering the Muslim ban, Roberts and the majority solved the problem by ignoring (deeming irrelevant) a rich trove of public statements by candidate Trump and President Trump, as well as the previous attempts that obviously targeted religious belief instead of countries with ties to terrorism. In this instance, a textualist review of statements and prior regulations (now inconvenient) took a back seat to intolerance.
Unlike the Chief Justice, Justice Samuel Alito does not deny Federal Society membership. (In case you’re wondering, neither do Neil Gorsuch, Clarence Thomas, Brett Kavanaugh, or Amy Coney Barrett.) In 2014, Alito authored a decision in the case of Burwell v Hobby Lobby Stores, holding that a sincerely held religious belief entitles an individual (or a business entity controlled by an individual) to withhold mandated health care benefits from others who have differing beliefs, presumably equally sincere.
Hobby Lobby was an attack on workers’ use of employer-subsidized health care insurance for contraceptive services. The owners of Hobby Lobby Stores, Inc. claimed that they sincerely believe that certain types of contraception are equivalent to abortion, which in turn violates their sincerely held religious beliefs. Therefore, they reasoned, the general health care benefit the law requires them to provide to employees cannot be applied to contraceptive services without violating their free exercise of religion. While the average reader may find this argument convoluted, not to mention unpersuasive, a majority of the Supreme Court did not.
Justice Ruth Bader Ginsberg’s dissent noted that the Court was “approving some religious claims while deeming others unworthy of accommodation.” At the time of the decision, Justice Anthony Kennedy was the only member of the Hobby Lobby majority who was not a member of The Federalist Society.
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The Society’s claimed desire to welcome opposing views was momentarily tested after the reading of another play, Richard the Third, followed by a panel discussion on the stage of Boston’s Opera House in front of some 300 lawyers and judges. C. Boyden Gray, former White House counsel to George H.W. Bush, kicked off the remarks. Wasting no time, he stated that if the American populace didn’t resist the unconstitutional assaults on liberty by Barack Obama (the creation of the Consumer Financial Protection Bureau and the passage of Obamacare in 2010 were both sore subjects for the Society), we could be facing a usurpation of power like that portrayed in Richard the Third, resulting in, no less, a third Obama term. There was a general nodding of heads.
By accident (or design?) I was seated stage-left (far left) at one end of the panel. Consequently my turn was last, providing me, an invited guest, with time to wonder how to respond. I began on what I hoped was a literary note, pointing out that Richard the Third depicted an aristocratic power struggle over the crown, that the welfare or the rights of common folk were never in consideration. But, yielding to temptation, I also ventured that the closest analogy to Richard the Third in Washington D.C. was the then-ongoing struggle between Speaker of the House John Boehner and the Tea Party/Christian Coalition members of his own caucus. This was met by silence. Except that later, one of the organizers of the event buttonholed me at the ensuing reception to tell me I was “like, wacko” (a direct quote). It’s hard to deny, consistent with the Society’s claim on its website, that this “redefined the terms of legal debate.” All in good fun, I joined him in a hearty chuckle.
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These are only a few examples and anecdotes. But consider the math — in addition to three Supreme Court appointments, the Trump/McConnell count for the last four years stands at 231 appointments to federal district and circuit courts. That’s roughly one-third of all federal appellate judges. These lifetime appointments will be with us for decades to come.
Andrew Grainger is a retired Associate Justice of the Massachusetts Appeals Court. He has been designated a Fulbright Senior Specialist by the U.S. Department of State. He and his wife, Kathleen Stone, have taught courses and seminars on U.S. law in numerous countries in Europe and the Far East. His writing has appeared in WBUR’s Cognoscenti and the Boston Globe.