ADDRESSING over 2,000 conservative lawyers and friends at a banquet in central Washington, DC, last week, Neil Gorsuch was in jocular form. “If you’re going to have a meeting of a secret organisation, maybe don’t have it in the middle of Union Station!” quipped the newest Supreme Court judge. This was disingenuous. The reason many worry about the Federalist Society, the legal organisation whose annual bunfight Justice Gorsuch was addressing, is not because it is shadowy, but because its influence is vast, brazen and part of a wider politicising of the last branch of American democracy to succumb to partisanship. His speech suggested those worries are if anything underplayed.
Two things about it were most striking. First, the triumphalist tone Mr Gorsuch, a supposedly impartial steward of the constitution, struck in celebrating the legal philosophy and activism of a group closely linked to the Republican Party. “Tonight, I can report, a person can be both a committed originalist and a textualist and be confirmed to the Supreme Court!” he said. “Thank you from the bottom of my heart for your support and prayers through that process.” If that was perhaps inappropriate, it was deserved. Founded in the early 1980s, as a riposte to the legal profession’s liberal mainstream, the Federalist Society has had a hand in the past three Republican Supreme Court appointments—starting with its frosty response to George W. Bush’s nomination of Harriet Miers and promotion of Samuel Alito in her place. Yet its role in Mr Gorsuch’s elevation is much greater.Get our daily newsletter
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As the youngest conservative justice, he is the first to have been a beneficiary of its now-ubiquitous legal networks throughout his career. Less ideological ways for conservative judges to advance—including senatorial favour or working for the Republican Party—have meanwhile fizzled. When Donald Trump, in need of conservative credentials last year, demanded a list of potential Supreme Court nominees, it was natural he would turn to the “Federalist people” for their suggestions, which included Mr Gorsuch. Having ridden that promise to victory, Mr Trump has since sidelined the American Bar Association, which traditionally vets judicial nominees, and outsourced the process to the society—or rather insourced it, the White House counsel, Donald McGahn, noted at its annual shindig, because he is also a member.
The second striking thing about Mr Gorsuch’s speech was his boldness in signalling a legal agenda—curtailing the federal bureaucracy’s power to interpret statutes—he means to pursue. This implied two sorts of departure from Antonin Scalia, the originalist he succeeded. Scalia deferred to both the executive and a tradition whereby justices reveal their thinking more in legal opinions than after-dinner speeches. Mr Gorsuch’s remarks—which even an approving legal scholar in the audience considered to be “tiptoeing the sideline” of propriety—augur a more activist approach....