The Federalist Society: From Obscurity to Power

"Federalist" Principles vs. Equal Opportunity & Constitutional Rights

Many of those who hold key leadership positions in the Federalist Society have campaigned to dramatically undermine civil and constitutional rights protections. Many of these leaders help oversee the Society's practice groups on civil rights and constitutional liberties.

Charles J. Cooper, who chairs the organization's practice group on civil rights, is a well-known opponent of traditional anti-discrimination efforts. In fact, Cooper co-wrote an opinion while serving in the Reagan Justice Department that federal law did not prevent employers from refusing to hire people with AIDS if those employers cited a "fear of contagion, whether reasonable or not."95 An article on the Society's Web site by Princeton University professor and leading Federalist Society member Robert George and attorney Bill Saunders attacks the U.S. Supreme Court's 1996 Romer v. Evans decision on anti-gay discrimination for curbing the ability of a state "to employ its 'police power' to protect public morals…" George and Saunders write that if the repeal of state sodomy laws encourages the Supreme Court "to raise homosexuality to protected status, perhaps such conduct should not be de-criminalized in the first place."96

The chairman-elect of the civil rights practice group, Michael Carvin (see Undeniably Ideological), is no more friendly than Cooper to the civil rights of gay Americans. Carvin formerly worked for Cooper when he was in the Justice Department's Civil Rights Division. In addition, he is a founder of the Center for Individual Rights, a far-right legal organization that, according to its Web site, files lawsuits pertaining to civil rights, congressional authority, elections, equal protection, the First Amendment, free exercise of religion, and freedom of speech. CIR represented applicants to the University of Texas Law School and got the Fifth Circuit Court of Appeals to rule that the school's desire to achieve diversity is not a sufficiently compelling state interest to support affirmative action in admissions.97 Two of the co-counsel in this case were Theodore Olson (now solicitor general) and Douglas Cox, both Federalist Society members.98 Carvin himself served as co-counsel in a Supreme Court case in which the Court severely limited the Justice Department's ability to take action against state and local governments that set up election districts on a discriminatory basis.99

Gail Heriot, a University of San Diego law professor who co-chairs the Society's civil rights practice group, also co-chaired the campaign to pass Proposition 209-a far-reaching California anti-affirmative action initiative so restrictive that the state Supreme Court interpreted it to outlaw outreach efforts for recruiting women and minorities.100 Roger Clegg, a vice chairman of the civil rights practice group, is general counsel of the Center for Equal Opportunity, which vigorously opposes affirmative action and bilingual education and focuses, as well, on immigration and redistricting.101

Society leaders on religious liberty and other issues also hold troubling views. Gerard V. Bradley, who is the chairman-elect of the Society's practice group on religious liberties, wrote an article criticizing Unitarians for "indifferentism," adding: "They [Unitarians] don't think you have to believe anything at all."102 In 1997, Bradley joined Religious Right leaders Gary Bauer, Ralph Reed, D. James Kennedy and other clergy in signing a manifesto on religion that complained that parents who wish to choose a "religious education" for their children "are unjustly burdened."103

Nicole Garnett-who chairs the Society's school choice subcommittee-is a former staff attorney for the Institute for Justice,104 which provides legal assistance to support private-school voucher programs. In a 1998 article, Garnett assailed the "audacity" and "belittling attitude" of the NAACP in going to court to challenge the constitutionality of the Milwaukee voucher program.105

Reproductive choice, of course, is another target of the Society's leaders. The George-Saunders article cited previously assails "the abortion license manufactured by the [Supreme] Court in Roe v. Wade."106 James Bopp, Jr., who is general counsel for the anti-abortion National Right to Life Committee, is a prominent Society member and chairs one of the Society's subcommittees.107

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