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Can you give a brief synopsis about how the federalist society is a conspiracy against democracy? I thought it was about originalism which seems to me to be pro

Can you give a brief synopsis about how the federalist society is a conspiracy against democracy? I thought it was about originalism which seems to me to be pro-democracy by maintaining proper separation of powers etc.

extra88 6y ago
The Federalist Society finds, indoctrinates, and advances conservative lawyers and judges. That's not inherently anti-democratic though their level of success and influence on judges selection processes may be considered so. The problem is they also tend to be highly partisan (pro-Republican) which undermines the separation of powers. Often their picks ignore their "originalist" approach when it would be counter to their desired outcome. I'm no expert, this is from my general understanding and skimming Wikipedia.
- chub500 6y ago
  I believe for the last 30 years or so (after the late Antonin Scalia) 'conservative' judge is almost synonymous with originalist. I think you may be falling victim to correlation is not causation? IE there are no liberal originalists by definition (above). If I'm wrong, could you give me an example of a liberal originalist? I would be very happy to be wrong about this. The correlation here is that conservative presidents pick justices who object to rulings like Roe v Wade. The mistaken 'cause' is that it is Conservatism that leads to this objection when in fact it could also be that originalists object to legislation from the bench. https://m.youtube.com/watch?v=Rj_MhS2u-Pk https://m.youtube.com/watch?v=Rj_MhS2u-Pk
  - extra88 6y ago
    Conservative judges have no problem with legislation from the bench when they're the ones doing it. Again, they pretend to use an impartial "originalist" principle when decision-making but cherry-pick the "original" texts they use or ignore them when they would lead to ruling in a way conservatives don't like. How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection (without safety requirements like a trigger lock or safe)? It's not, yet that's what conservatives decided, specifically Scalia in his majority opinion in District of Columbia v. Heller.
    - chub500 6y ago
      https://m.youtube.com/watch?v=_j6lRdktscE https://m.youtube.com/watch?v=_j6lRdktscE Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Again, what constitutes a true liberal originalist? These justices are not pursuing power but trying to interpret law - and they get accused of undermining democracy...
      - extra88 6y ago
        > Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Whatever rights to bear arms there are, they come from the 2nd Amendment. It is absurd to stretch an Amendment about "well regulated Militia" to mean D.C. can't require people to store a handgun with a trigger lock because it would impinge on their ability to use it for personal protection. Yet that's what Scalia in the majority decided. > what constitutes a true liberal originalist? You keep missing my point; if anyone was actually an originalist, some of their decisions would seem conservative, some would seem liberal, because they would just obediently be following what the text says. No judge actually does that and that alone, I'm only aware of conservative judges that claim they do. The term "originalist" was invented by conservatives so that's not surprising. I am not saying all conservative judges make wrong decisions and liberal judges make right ones. I'm saying conservatives attack outcomes they don't like as not being "originalist" instead of being honest that it's an outcome they don't like. They're hypocrites. But this is not really relevant to the original claim of the Federalist Society undermining democracy; I think it would go to far to say to be conservative is to be anti-democratic. If the Federalist Society is anti-democratic, it's more in their means than in their ends.
        chub500 6y ago
        Let me push back one more time. If what you're saying is true, and no judge no matter how much integrity they have can be truly originalist - what do we do? Is our judicial system dead? Should we even try to pick originalists or give up on a third branch and let it be a super legislature? What comes of rule of law? Doesn't this seem like a problem?
  - pstuart 6y ago
    Originalism seems to go hand-in-hand with religious fundamentalism, i.e, "God said it, I believe it, that settles it". Edit: for the downvoters, please let me know how Scalia's religious beliefs were completely compartmentalized and had no influence on him outside of a church: https://www.ncronline.org/blogs/ncr-today/justice-antonin-scalia-very-traditional-catholic https://www.ncronline.org/blogs/ncr-today/justice-antonin-sc...
  - deleted 6y ago
    [deleted]
  - js2 6y ago
    Originalism is fine in theory when coupled with judicial restraint. However, in practice, it has become justification for big-C Conservative justices to actively impose their views, overriding the democratic legislative process. http://www.dorfonlaw.org/2017/08/how-determinate-is-originalism-in.html http://www.dorfonlaw.org/2017/08/how-determinate-is-original... We're not going to settle this in the comment section of HN, but I happen to agree with this opinion: As the Warren and early Burger Courts faded into history, originalism drifted away from its critique of judicial activism. The political conservatives who had disliked the countermajoritarian output of the Warren and early Burger Courts developed a fondness for judicial activism once there was a conservative majority on the Supreme Court. Originalism was thus transformed from a shield against what its proponents saw as illegitimate liberal decisions striking down laws adopted by conservative lawmakers into a sword that could be wielded by conservatives to strike down laws adopted by liberal lawmakers. Originalism coupled with judicial restraint could not invalidate affirmative action, campaign finance regulations, or gun control. Abandoning judicial restraint led to an "unbound" form of originalism that licensed conservative judicial activism, even as judicial conservatives continued to complain about liberal judicial activism in cases involving such matters as abortion, the death penalty, and gay rights. http://www.dorfonlaw.org/2019/11/why-not-to-be-originalist.html http://www.dorfonlaw.org/2019/11/why-not-to-be-originalist.h... Do you have a non-activist originalist argument for Alito's on-going stance against legal protection of gay marriage? In Obergefell v. Hodges he stated that the Due Process clause protects only rights "deeply rooted in this Nation's history and tradition". He's making up a justification to allow a minority of conservative opinion to prevent gay people from getting married. How isn't that activism?
    - chub500 6y ago
      I don't practice law but it seems obvious to me how one would make rulings about marriage laws before and during Obergefell v. Hodges. One of the central tenants of originalism is using words/language according to their original meanings (within reason). Since when have we understood marriage to include same sex? Long after these laws for marriage were put on the books in many cases. https://www.law.cornell.edu/wex/marriage https://www.law.cornell.edu/wex/marriage So I turn it on you - I'm not an expert so help me understand - how is Obergefell v. Hodges not legislation from the bench when it changes the meaning of these laws unilaterally?
  - alain94040 6y ago
    I'm not sure "originalist" means anything. The constitution, like all legal texts, contains contradictions between different principles. As logic students know, once you have contradictions in your principles, you can prove anything you want. The role of a judge is to sort through these contradictions to decide which principles are more important than others, even though they are all mentioned in the constitution. So I don't see how there is an objective concept of "originalist": you have to pick some principles over others. Which ones you pick are a lot more guided by your own ideology than by the words on paper.
    - ceejayoz 6y ago
      > I'm not sure "originalist" means anything. The constitution, like all legal texts, contains contradictions between different principles. Not just the Constitution, either. Other contemporary writings - the Federalist Papers, etc. - are often quote-mined to determine "intent". As you identify, these offer a lot of opportunities to pick and choose stuff in favor of whatever ideological decision you'd like to make.
    - Animats 6y ago
      It has meaning, but not what we see today. Interpreting the US Constitution as intended by its authors would probably have consequences like this: - A much stronger view of the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. That means no searches without a warrant, period. No general surveillance. No "drug exception". No "exigent circumstances" exception. Wiretapping, on a court order only. Which is where the US mostly was until the 1960s or so. This means going back to "We have you surrounded. Come out with your hands up". - Much more use of jury trials. Anything that involves even a day in jail, or a fine over $20 (might allow for inflation adjustment) means a jury trial. No treating six months in jail as a "petty offense". Longer sentences for demanding a jury trial would be considered a major Fifth Amendment violation. And no "civil forfeitures". - Religion is just another business. No tax break, no restrictions on lobbying, no exemptions from other neutral laws. - Corporations are not "persons". The history of how corporations got constitutional rights is strange and interesting. See Southern Pacific Railroad vs. County of Santa Clara (1886). Until then, corporations did not have constitutional rights; only their employees did. That's originalism.
- jonstewart 6y ago
  Indeed. To illustrate Samuel Alito just gave a keynote address to the Federalist Society a few days ago. The NY Times and NPR have recaps: https://www.nytimes.com/2020/11/13/us/samuel-alito-religious-liberty-free-speech.html https://www.nytimes.com/2020/11/13/us/samuel-alito-religious... https://www.npr.org/2020/11/13/934666499/justice-alito-pandemic-has-brought-unimaginable-restrictions-on-freedoms https://www.npr.org/2020/11/13/934666499/justice-alito-pande... You can watch the whole thing for yourself here: https://youtu.be/tYLZL4GZVbA https://youtu.be/tYLZL4GZVbA The speech is an attack on science, expertise, and common sense. It’s a MAGA hat with a thin veneer of respectability. It’s not clear to me to what extent such judges believe in this ideology, or whether they’re simply craven and exercising a will to power, but the Federalist Society has spent the past several decades working to place lawyers with fringe jurisprudence into the judiciary, and the Koch brothers wrote the checks.
  - dane-pgp 6y ago
    > It’s a MAGA hat with a thin veneer of respectability. So like a MAGA fedora?
  - akudha 6y ago
    I saw parts of the speech and it was crazy. This is why appointing judges for life makes zero sense to me. If I become a supreme court judge at 45 and live to 75, I have a full three decades to change the direction of the country forever. This is very very scary. There should be a term limit for everyone in government like presidents do - mayors, congressmen, senators, judges...
    - jasonwatkinspdx 6y ago
      Not to mention it'd make the majority of turnovers in the supreme court an orderly scheduled event fair between parties.
      - erik_seaberg 6y ago
        They are meant to be appointing an independent judiciary applying precedent and law as written, not delegates whose votes are pledged to parties. Activists belong in Congress where the voters have some say.
hackeraccount 6y ago
conspiracy against democracy = people pursuing political ends I don't like Grassroots democratic action = people pursuing political ends I do like
- bitwize 6y ago
  "$TYCOON_I_DISAGREE_WITH is a shadowy oligarch undermining democracy with dark money" = facts "$TYCOON_I_AGREE_WITH is a shadowy oligarch undermining democracy with dark money" = unfounded conspiracy theory
gamblor956 6y ago
See a transcript of Alito's speech this week. It's a hour of ranting against democracy. He didn't even hide the fact that he doesn't care that gay marriage or other issues were approved by voters; he would judicially end gay marriage in the name of "religious freedom." But this freedom only extends to particular forms of Christianity, as Alito is quite comfortable with restricting the religious practices of Muslims and Wiccans.
- catawbasam 6y ago
  There is genuine work to be done reconciling gay marriage with the first amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" Unfortunately Alito is more likely to add to the problem than to help resolve it.
  - kemiller 6y ago
    Hogwash. No religion is forced to perform marriages they don’t believe in.
  - ceejayoz 6y ago
    > There is genuine work to be done reconciling gay marriage with the first amendment... Why? Catholics (as an example) don't perform or internally honor Jewish (as an example) weddings, either, without it being any sort of First Amendment issue.
    - voltaireodactyl 6y ago
      First Amendment protects you from government. Catholics are not the government. That’s why Catholic discussion of Jewish marriages is not a First Amendment issue, while Supreme Court Justice Alito advocating against gay marriage is.
      - ceejayoz 6y ago
        > First Amendment protects you from government. Catholics are not the government. Right. That's my point; there's no need to reconcile the First Amendment with permitting gay marriage. There's nothing to reconcile. The common "allowing gay marriage is an infringement of religious freedom" argument is bunk for that reason.

extra88 6y ago

The Federalist Society finds, indoctrinates, and advances conservative lawyers and judges. That's not inherently anti-democratic though their level of success and influence on judges selection processes may be considered so. The problem is they also tend to be highly partisan (pro-Republican) which undermines the separation of powers. Often their picks ignore their "originalist" approach when it would be counter to their desired outcome. I'm no expert, this is from my general understanding and skimming Wikipedia.

chub500 6y ago
I believe for the last 30 years or so (after the late Antonin Scalia) 'conservative' judge is almost synonymous with originalist. I think you may be falling victim to correlation is not causation? IE there are no liberal originalists by definition (above). If I'm wrong, could you give me an example of a liberal originalist? I would be very happy to be wrong about this. The correlation here is that conservative presidents pick justices who object to rulings like Roe v Wade. The mistaken 'cause' is that it is Conservatism that leads to this objection when in fact it could also be that originalists object to legislation from the bench. https://m.youtube.com/watch?v=Rj_MhS2u-Pk https://m.youtube.com/watch?v=Rj_MhS2u-Pk
- extra88 6y ago
  Conservative judges have no problem with legislation from the bench when they're the ones doing it. Again, they pretend to use an impartial "originalist" principle when decision-making but cherry-pick the "original" texts they use or ignore them when they would lead to ruling in a way conservatives don't like. How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection (without safety requirements like a trigger lock or safe)? It's not, yet that's what conservatives decided, specifically Scalia in his majority opinion in District of Columbia v. Heller.
  - chub500 6y ago
    https://m.youtube.com/watch?v=_j6lRdktscE https://m.youtube.com/watch?v=_j6lRdktscE Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Again, what constitutes a true liberal originalist? These justices are not pursuing power but trying to interpret law - and they get accused of undermining democracy...
    - extra88 6y ago
      > Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Whatever rights to bear arms there are, they come from the 2nd Amendment. It is absurd to stretch an Amendment about "well regulated Militia" to mean D.C. can't require people to store a handgun with a trigger lock because it would impinge on their ability to use it for personal protection. Yet that's what Scalia in the majority decided. > what constitutes a true liberal originalist? You keep missing my point; if anyone was actually an originalist, some of their decisions would seem conservative, some would seem liberal, because they would just obediently be following what the text says. No judge actually does that and that alone, I'm only aware of conservative judges that claim they do. The term "originalist" was invented by conservatives so that's not surprising. I am not saying all conservative judges make wrong decisions and liberal judges make right ones. I'm saying conservatives attack outcomes they don't like as not being "originalist" instead of being honest that it's an outcome they don't like. They're hypocrites. But this is not really relevant to the original claim of the Federalist Society undermining democracy; I think it would go to far to say to be conservative is to be anti-democratic. If the Federalist Society is anti-democratic, it's more in their means than in their ends.
      - chub500 6y ago
        Let me push back one more time. If what you're saying is true, and no judge no matter how much integrity they have can be truly originalist - what do we do? Is our judicial system dead? Should we even try to pick originalists or give up on a third branch and let it be a super legislature? What comes of rule of law? Doesn't this seem like a problem?
- pstuart 6y ago
  Originalism seems to go hand-in-hand with religious fundamentalism, i.e, "God said it, I believe it, that settles it". Edit: for the downvoters, please let me know how Scalia's religious beliefs were completely compartmentalized and had no influence on him outside of a church: https://www.ncronline.org/blogs/ncr-today/justice-antonin-scalia-very-traditional-catholic https://www.ncronline.org/blogs/ncr-today/justice-antonin-sc...
- deleted 6y ago
  [deleted]
- js2 6y ago
  Originalism is fine in theory when coupled with judicial restraint. However, in practice, it has become justification for big-C Conservative justices to actively impose their views, overriding the democratic legislative process. http://www.dorfonlaw.org/2017/08/how-determinate-is-originalism-in.html http://www.dorfonlaw.org/2017/08/how-determinate-is-original... We're not going to settle this in the comment section of HN, but I happen to agree with this opinion: As the Warren and early Burger Courts faded into history, originalism drifted away from its critique of judicial activism. The political conservatives who had disliked the countermajoritarian output of the Warren and early Burger Courts developed a fondness for judicial activism once there was a conservative majority on the Supreme Court. Originalism was thus transformed from a shield against what its proponents saw as illegitimate liberal decisions striking down laws adopted by conservative lawmakers into a sword that could be wielded by conservatives to strike down laws adopted by liberal lawmakers. Originalism coupled with judicial restraint could not invalidate affirmative action, campaign finance regulations, or gun control. Abandoning judicial restraint led to an "unbound" form of originalism that licensed conservative judicial activism, even as judicial conservatives continued to complain about liberal judicial activism in cases involving such matters as abortion, the death penalty, and gay rights. http://www.dorfonlaw.org/2019/11/why-not-to-be-originalist.html http://www.dorfonlaw.org/2019/11/why-not-to-be-originalist.h... Do you have a non-activist originalist argument for Alito's on-going stance against legal protection of gay marriage? In Obergefell v. Hodges he stated that the Due Process clause protects only rights "deeply rooted in this Nation's history and tradition". He's making up a justification to allow a minority of conservative opinion to prevent gay people from getting married. How isn't that activism?
  - chub500 6y ago
    I don't practice law but it seems obvious to me how one would make rulings about marriage laws before and during Obergefell v. Hodges. One of the central tenants of originalism is using words/language according to their original meanings (within reason). Since when have we understood marriage to include same sex? Long after these laws for marriage were put on the books in many cases. https://www.law.cornell.edu/wex/marriage https://www.law.cornell.edu/wex/marriage So I turn it on you - I'm not an expert so help me understand - how is Obergefell v. Hodges not legislation from the bench when it changes the meaning of these laws unilaterally?
- alain94040 6y ago
  I'm not sure "originalist" means anything. The constitution, like all legal texts, contains contradictions between different principles. As logic students know, once you have contradictions in your principles, you can prove anything you want. The role of a judge is to sort through these contradictions to decide which principles are more important than others, even though they are all mentioned in the constitution. So I don't see how there is an objective concept of "originalist": you have to pick some principles over others. Which ones you pick are a lot more guided by your own ideology than by the words on paper.
  - ceejayoz 6y ago
    > I'm not sure "originalist" means anything. The constitution, like all legal texts, contains contradictions between different principles. Not just the Constitution, either. Other contemporary writings - the Federalist Papers, etc. - are often quote-mined to determine "intent". As you identify, these offer a lot of opportunities to pick and choose stuff in favor of whatever ideological decision you'd like to make.
  - Animats 6y ago
    It has meaning, but not what we see today. Interpreting the US Constitution as intended by its authors would probably have consequences like this: - A much stronger view of the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. That means no searches without a warrant, period. No general surveillance. No "drug exception". No "exigent circumstances" exception. Wiretapping, on a court order only. Which is where the US mostly was until the 1960s or so. This means going back to "We have you surrounded. Come out with your hands up". - Much more use of jury trials. Anything that involves even a day in jail, or a fine over $20 (might allow for inflation adjustment) means a jury trial. No treating six months in jail as a "petty offense". Longer sentences for demanding a jury trial would be considered a major Fifth Amendment violation. And no "civil forfeitures". - Religion is just another business. No tax break, no restrictions on lobbying, no exemptions from other neutral laws. - Corporations are not "persons". The history of how corporations got constitutional rights is strange and interesting. See Southern Pacific Railroad vs. County of Santa Clara (1886). Until then, corporations did not have constitutional rights; only their employees did. That's originalism.
jonstewart 6y ago
Indeed. To illustrate Samuel Alito just gave a keynote address to the Federalist Society a few days ago. The NY Times and NPR have recaps: https://www.nytimes.com/2020/11/13/us/samuel-alito-religious-liberty-free-speech.html https://www.nytimes.com/2020/11/13/us/samuel-alito-religious... https://www.npr.org/2020/11/13/934666499/justice-alito-pandemic-has-brought-unimaginable-restrictions-on-freedoms https://www.npr.org/2020/11/13/934666499/justice-alito-pande... You can watch the whole thing for yourself here: https://youtu.be/tYLZL4GZVbA https://youtu.be/tYLZL4GZVbA The speech is an attack on science, expertise, and common sense. It’s a MAGA hat with a thin veneer of respectability. It’s not clear to me to what extent such judges believe in this ideology, or whether they’re simply craven and exercising a will to power, but the Federalist Society has spent the past several decades working to place lawyers with fringe jurisprudence into the judiciary, and the Koch brothers wrote the checks.
- dane-pgp 6y ago
  > It’s a MAGA hat with a thin veneer of respectability. So like a MAGA fedora?
- akudha 6y ago
  I saw parts of the speech and it was crazy. This is why appointing judges for life makes zero sense to me. If I become a supreme court judge at 45 and live to 75, I have a full three decades to change the direction of the country forever. This is very very scary. There should be a term limit for everyone in government like presidents do - mayors, congressmen, senators, judges...
  - jasonwatkinspdx 6y ago
    Not to mention it'd make the majority of turnovers in the supreme court an orderly scheduled event fair between parties.
    - erik_seaberg 6y ago
      They are meant to be appointing an independent judiciary applying precedent and law as written, not delegates whose votes are pledged to parties. Activists belong in Congress where the voters have some say.

hackeraccount 6y ago

conspiracy against democracy = people pursuing political ends I don't like Grassroots democratic action = people pursuing political ends I do like

bitwize 6y ago
"$TYCOON_I_DISAGREE_WITH is a shadowy oligarch undermining democracy with dark money" = facts "$TYCOON_I_AGREE_WITH is a shadowy oligarch undermining democracy with dark money" = unfounded conspiracy theory

gamblor956 6y ago

See a transcript of Alito's speech this week. It's a hour of ranting against democracy. He didn't even hide the fact that he doesn't care that gay marriage or other issues were approved by voters; he would judicially end gay marriage in the name of "religious freedom." But this freedom only extends to particular forms of Christianity, as Alito is quite comfortable with restricting the religious practices of Muslims and Wiccans.

catawbasam 6y ago
There is genuine work to be done reconciling gay marriage with the first amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" Unfortunately Alito is more likely to add to the problem than to help resolve it.
- kemiller 6y ago
  Hogwash. No religion is forced to perform marriages they don’t believe in.
- ceejayoz 6y ago
  > There is genuine work to be done reconciling gay marriage with the first amendment... Why? Catholics (as an example) don't perform or internally honor Jewish (as an example) weddings, either, without it being any sort of First Amendment issue.
  - voltaireodactyl 6y ago
    First Amendment protects you from government. Catholics are not the government. That’s why Catholic discussion of Jewish marriages is not a First Amendment issue, while Supreme Court Justice Alito advocating against gay marriage is.
    - ceejayoz 6y ago
      > First Amendment protects you from government. Catholics are not the government. Right. That's my point; there's no need to reconcile the First Amendment with permitting gay marriage. There's nothing to reconcile. The common "allowing gay marriage is an infringement of religious freedom" argument is bunk for that reason.