The Federalist Society: From Obscurity to Power

"Federalist" Principles vs. Federalist Authority

Activities by the Federalist Society and some of its prominent members on such subjects as congressional authority and civil rights reveal the scope of the changes the group seeks to bring about in America's legal landscape. As its name suggests, the organization warmly embraces its version of the concept of "federalism"-limiting federal authority to areas such as national defense and ceding most powers to states and localities. While many Americans respect the right of state and local governments to make certain decisions, leading members of the Society take federalism to an extreme by seeking to block the ability of the federal government to enact and enforce laws protecting the environment, civil rights, workplace health and safety, and other areas.

The drumbeat for its radical view of federalism permeates the Federalist Society's publications and conferences-including its law school chapters. An article in the newsletter of one such chapter laments that judges "have usurped state and local governmental authority..."85 In an October 1997 Society panel entitled "Federalism Revived?" panelists critiqued Supreme Court rulings and articulated their view that courts should restrict the ability of the federal government to enforce various laws. Greg Katsas, a prominent Society member who serves as an officer of the organization's litigation practice group, criticized the Supreme Court's "bad" decision in City of Rome v. United States (1980) to uphold the federal government's authority to enforce the Voting Rights Act because, he said, it permitted "enormous intrusions into state voting structures..."86

Another panelist voiced support for the high court's ruling that struck down federal authority under the Brady Act to require state law enforcement officers to conduct background checks on prospective gun buyers. The panelist even complained that the decision written by Justice Scalia-who helped establish the Society and nurture its growth-was "unnecessarily apologetic" and could have been more emphatic in declaring that Congress overreached by passing the Brady Act.87

In addition to sponsoring a conference this year called "Rolling Back the New Deal," the Society itself has endorsed the view that Supreme Court decisions upholding congressional authority to enact New Deal legislation were harmful. In its online "Introduction to American Law" and reading list, the Society recommends several articles that make this point.88 According to the Society, one article "describes the damage done to the Constitution's protection of economic liberties by the Court's approval of New Deal regulatory statutes."89

Prominent Federalist Society members have been at the leading edge of efforts to utilize such legal theories to limit civil rights and other protections. As a defense attorney in a Virginia rape case, Michael Rosman-a leading figure in the Society-used this right-wing view of states' rights to argue before the Supreme Court against the constitutionality of the 1994 Violence Against Women Act.90 Rosman's case was bolstered by a friend of the court brief filed by prominent Federalist Society member Jeffrey Sutton, an officer in the Society's separation of powers and federalism practice group. The result was a narrow 5-4 decision by the Court striking down key provisions of the Act. Sutton had earlier argued another Supreme Court case that struck down a congressional law designed to protect religious liberty, and praised the ruling in a Federalist Society article because it "strikes a welcome blow for States' rights."91

President Bush recently nominated Sutton for a seat on the U.S. Court of Appeals for the Sixth Circuit, and Sutton's role in harming civil rights and other protections through his narrow view of federalism has received significant criticism. Most recently, Sutton argued the University of Alabama v. Garrett case in the Supreme Court, producing a 5-4 decision that state employees who suffered discrimination could not sue under the federal Americans with Disabilities Act (ADA) to seek damages from the state.92 The ADA has enjoyed the support of many prominent Republicans-including former Senator Robert Dole and former President Bush, who signed the ADA into law.93 Yet, Sutton reportedly claimed that the law is unnecessary and argued for an even broader Court ruling against the ADA. When asked by the Court during the Garrett hearing whether his argument was meant to challenge only limited portions of the ADA, Sutton replied, "Well, Your Honor, it's a challenge to the ADA across the board [emphasis added]."94

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