On June 29, the Supreme Court upheld a challenge to affirmative action at Harvard and the University of North Carolina and put an end to race-conscious measures to overcome discrimination. The Federalist Society, an ultra-conservative legal organization, was the central force behind this decision. In immediate terms, the opinions that killed affirmative action were written by the six justices who are or have been members of the Federalist Society, the conservative majority on the court. More significantly, the decision was based on precedents that Federalist Society lawyers had created over the past 40 years.
Chief Justice Roberts, long an opponent of affirmative action, wrote the opinion for the court in which all the conservative justices joined. Justices Thomas, Gorsuch and Kavanaugh wrote concurring opinions to articulate their individual concerns. Collectively they rejected diversity in education as a permissible justification for affirmative action, bemoaned the impact that race-conscious measures allegedly had on nonminority students, complained that the universities were engaged in stereotyping, and said that the universities’ lack of a logical end point to affirmative action was fatal because it ran contrary to Justice Sandra Day O’Connor’s arbitrary prediction in the 2003 Grutter case that affirmative action would no longer be necessary in 25 years.
Civil rights advocates had historically argued that overcoming the consequences of social discrimination, the gaps between minority and white people in wealth, income, health, education, housing, and other measures, justified race-conscious measures by the government to overcome the disparities. Indeed, undoing the continuing effects of racial discrimination by government and private actors over generations was the original rationale for affirmative action. But beginning in the 1980s, Federalist Society lawyers gradually convinced a majority of the justices to reject that position. After the Grutter decision, only diversity was recognized by the court as a legitimate goal of affirmative action. The decision in the Harvard/UNC cases finally took that off the table as well.
The opinions by the dissenting Justices Sotomayor, Jackson and Kagan describe a very different U.S. than their six colleagues pretend they are living in. The reader should peruse these opinions in their entirety. As Justice Sotomayor puts it, “the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” She weighs heavily “the central role that education plays in breaking the cycle of racial inequality.” She recounts the numerous race-conscious means the government has employed to overcome the effects of slavery and Jim Crow, going back to the Freedmen’s Bureau. “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”
Justice Jackson in turn recounts the history of government action that was designed to, and did, benefit the white race. These include the iconic programs of the New Deal and post-World War II eras that built the American middle class — most notably federal mortgage assistance and the GI Bill. The government’s extraordinary wealth-creating benefits (what Justice Jackson describes as “the greatest mass-based opportunity for wealth accumulation in American history”) went to white citizens, leaving people of color on the sidelines — the wide well-documented wealth gaps between white and Black families did not just happen. The court majority erases this history, just as concerted conservative efforts now seek to remove it from the textbooks.
“Today’s decision,” Justice Jackson predicts ironically, “will undoubtedly extend the duration of our country’s need for … race consciousness, because the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society (the closure of which today’s decision will forestall).”
For the dissenters, and so many of us, overcoming the effects of social discrimination is not only a permissible but also an essential goal of government. The response by Roberts, however, was simple: The court already said no to that.
From Enforcing to Attacking Affirmative Action
In the ‘60s, protestors on the streets of Birmingham and Selma, as well as leaders like Martin Luther King Jr., Malcolm X, Angela Davis and John Lewis, had moved previously hostile or indifferent political leaders to embrace their cause, first through the passage of the Civil Rights Act of 1964 and later through the Voting Rights Act.
But merely prohibiting racial discrimination, Black organizers and political leaders came to recognize, would not reverse the enduring consequences of slavery and Jim Crow. The notion of “affirmative action,” first articulated by President Kennedy in March 1961, early in his term, was designed to “wipe away the scars of centuries of egregious mistreatment,” as President Lyndon B. Johnson later put it. Initially focused on government contractors, it imposed nondiscrimination provisions and recruitment requirements, and over the years was expanded into education and other areas. Thus began the slow progress of minorities and women in the labor market, universities, and other areas of opportunity.
The Federalist Society was founded in 1981 by law students at elite schools who objected to what they perceived to be liberal predominance in education. With generous backing from conservative philanthropists, the society grew rapidly. The founders of the Federalist Society, who included David McIntosh, Steven G. Calabresi, Peter D. Keisler and Lee Liberman Otis, among others, had their sights on affirmative action since they were in college. As undergraduates, they sponsored a debate of the Yale Political Union on the topic: “Resolved: That Yale Should Abolish Affirmative Action.” Now-Justice Samuel Alito was a member of the Concerned Alumni of Princeton, opposed to the inclusion of women and minorities on campus.
When they graduated law school in the mid-’80s, Federalist Society leaders were hired as law clerks to important judges, as staffers in the White House and in the Office of Legal Policy (OLP) in the Department of Justice. The OLP lawyers drafted crucial policy memos attacking affirmative action. They ambitiously laid out the next 15 years of conservative retrenchment across a wide spectrum of legal issues in a key document, “Report to the Attorney General: The Constitution in the Year 2000.”
Affirmative action has always been one of the Federalist Society’s principal targets. Its lawyers have fought against race conscious policies through public campaigns, debates and presentations, articles and propaganda, ballot initiatives, capturing important government posts and litigation.
The Reagan administration was the launching pad for the campaign, and for the careers of many Federalist Society lawyers. Edwin Meese, initially counselor to the president, later attorney general, arranged for the recently graduated Federalist Society founders to get important positions in the White House and the Justice Department. There they sponsored debates and other programs in Washington, D.C., and other cities, and attracted conservative lawyers to join the group.
Influential Federalist Society figures in the Reagan administration included John Roberts, Samuel Alito and Clarence Thomas, who later joined Antonin Scalia on the Supreme Court; Carolyn Kuhl and Michael McConnell, who would be appointed as Court of Appeals judges by George W. Bush; Charles J. Cooper, director of the Office of Legal Counsel; T. Kenneth Cribb Jr., Meese’s counselor and later a member of the Board of Directors of the Federalist Society; Michael Carvin, later senior advisor to the Federalist Society Civil Rights Practice Group and a co-founder of The Center for Individual Rights; Linda Chavez, staff director at the U.S. Commission on Civil Rights in Reagan’s first term and later the founder and chairman of the Center for Equal Opportunity; and Roger Clegg, later the president and general counsel of the Center for Equal Opportunity.
The principal architect of the Reagan administration’s policies was William Bradford Reynolds, head of the Civil Rights Division of the Justice Department. Reynolds later became a member of the Federalist Society Board of Visitors. His actions as head of the Civil Rights Division, including sending warnings to local governments that any race-conscious programs would draw litigation from the Justice Department, were so controversial that in 1985 his nomination to the position of associate attorney general was rejected by the Republican-led Senate Judiciary Committee. Under Reynold’s leadership, the Justice Department for the first time sided with those opposed to civil rights, and fought to reverse the hard-fought advances in social justice achieved over the past decades.
Federalist Society lawyers were at the forefront of this transformation — including attacking affirmative action in the ’80s. Local 28 of the Sheet Metal Workers had, for example, long excluded nonwhites from membership. The federal government initially sued in 1971, but the union fought bitterly against any reforms in its practices, repeatedly appealing affirmative action orders from lower courts, and the case dragged on. When it finally reached the Supreme Court, however, Clarence Thomas and the Equal Employment Opportunity Commission (EEOC) turned against the minority workers, claiming the court’s order established a quota and offered benefits to minority workers who had not themselves been actual victims of discrimination — a Federalist Society dogma.
Thomas, now under attack for accepting hundreds of thousands of dollars’ worth of unreported gifts while a Justice of the Supreme Court, has long been the Federalist Society’s principal Black advocate against affirmative action. By his own admission a beneficiary of affirmative action in admission to Holy Cross College and Yale Law School, in the Reagan administration he was chairman of the EEOC from 1982 to 1990. He turned the EEOC away from systemic approaches to combating discrimination, rejected enforcement activities focused on actual goals and timetables, and ignored the use of tests and other screening devices disadvantageous to minorities. Instead, he focused merely on individual claims of discrimination, consistent with the Federalist Society axiom that discrimination was the product of a few “bad apples” in the workplace, not a systemic problem. Thomas cynically argued, “Law enforcement, not social engineering, was the proper mission of the agency.”
The Cases That Turned the Tide
The NAACP had filed suit in 1972 against the Alabama Public Safety Department, which had no Black state troopers in its 37-year history. The federal government joined the NAACP as a plaintiff in the case. After years of litigation and resistance from the defendant, Black people were still underrepresented in the officer ranks, and the district court finally entered an order requiring the promotion of one Black for each white Alabama state trooper promoted. In 1987, the United States changed sides and opposed that order. It argued that the district court was “holding innocent white state troopers hostage.” According to the Federalist Society lawyers, the real victims of discrimination were now white males.
The influence of the Federalist Society on the appointment of federal judges and Supreme Court justices is virtually unprecedented in our history.
In both those cases, the Supreme Court ruled against the Reagan administration. The tide was about to turn, however. One problem that had vexed civil rights advocates was that, due to seniority rules, minority employees who were hired after a history of segregation in a workplace were at greater risk of being laid off. The school board in Jackson, Michigan, tried to solve the problem by giving protection against layoffs to recently hired minority teachers. White teachers sued, claiming race discrimination. The Reagan administration filed a brief in Wygant v. Jackson Board of Education supporting the white teachers, arguing that the constitution should be “colorblind.” The white challengers won, and the protection for minority teachers was ruled unconstitutional in 1986.
1986 was thus the turnabout year for civil rights protections.
Further north, nonwhite employees in salmon canneries in Alaska had been discriminated against based on race. Their working conditions were atrocious. Justice Paul Stevens characterized them this way: “Some characteristics of the Alaska salmon industry described in this litigation — in particular, the segregation of housing and dining facilities and the stratification of jobs along racial and ethnic lines — bear an unsettling resemblance to aspects of a plantation economy.”
Yet in its 1989 opinion in Wards Cove Packing Co., Inc. v. Atonio, the court set an artificially high standard for proving discrimination on the basis of race, and ruled that the minority workers had not met it. The court justified its ruling on a purported fear of quotas, a frequent ruse used by Federalist Society lawyers to undermine affirmative action measures, and one unsupported by any evidence. In a rare move, Congress rejected the court’s narrowing of the landmark Civil Rights Act of 1964 by adopting a new Civil Rights Act of 1991, which expanded the protections to include, among other things, explicit prohibition of practices that had a disproportionate impact on minorities or women.
In these Reagan era cases, leading Federalist Society lawyers in the Justice Department, private practice and at so-called conservative public interest firms wrote the government’s briefs as well as briefs filed by amicus groups opposing affirmative action. They included Charles Fried, William Bradford Reynolds, Michael A. Carvin, Roger Clegg, Clint Bolick, Charles J. Cooper, Samuel A. Alito Jr. and Carolyn B. Kuhl.
One tactic that Federalist Society lawyers used was to push for the most difficult standard for affirmative action programs to be ruled constitutional: “strict scrutiny.” So difficult because under strict scrutiny governmental action must serve a “compelling” purpose. Under pressure from conservatives, the Supreme Court has defined only two interests as “compelling” for employing racial classifications: (1) remedying past intentional discrimination by the specific government body regulated by the classification; and (2) diversity, broadly defined, in education. The court pinned affirmative action’s future to the latter rationale, ignoring the more obvious justification relied on in other countries — the compelling need to undo the lingering effects of past discrimination, especially that perpetrated by the government.
By the 1980s, there had long been widespread and well documented discrimination against Black workers in the construction industry. Civil rights advocates began to persuade local and federal government bodies to create programs to overcome that discrimination. In 1983, the former capital of the Confederacy, Richmond, Virginia, adopted a plan that required contractors to give at least 30 percent of their subcontracts to minority business enterprises. The federal government similarly included in its contracts financial incentives to give subcontracts to minority businesses.
In a pair of cases, City of Richmond v. J.A. Croson, Co. (1989), and Adarand Constructors, Inc. v. Peña (1995), the Supreme Court ruled the programs unconstitutional. Federalist Society lawyers filed amicus briefs in both cases urging the court to adopt the strict scrutiny standard that killed the programs. In Croson, Federalist Society lawyers Charles Fried, solicitor general of the United States, and William Bradford Reynolds, deputy solicitor general, put the weight of the federal government behind the argument that “the standard of review applicable to remedial uses of race [should be] the same as the standard of review applicable to non-remedial uses of such criteria.” In other words, it doesn’t matter whether the court is reviewing racist policies of exclusion, or remedial policies to promote racial justice. In either case, the court would use the standard that can seldom be met — strict scrutiny. To apply that test is to dictate the demise of the program.
It is noteworthy that briefs filed in Adarand on behalf of the Associated General Contractors of America opposing any race-conscious remedy, were coauthored by Federalist Society lawyer John G. Roberts Jr., then with the firm of Hogan & Hartson in Washington, D.C. and now the chief justice of the Supreme Court.
Taking Aim at Diversity
Voluntary plans by government bodies to overcome discrimination have been a favorite target of Federalist Society lawyers. When John Roberts was a lawyer in the Justice Department in the Reagan administration, he took on what he described as “racial balancing” by federal agencies, drafting memos against affirmative action. Wielding his gavel as chief justice, he came down hard against such plans in his opinion for the court in Parents Involved in Community Schools v. Seattle School District No.1 (2007) with the “bumper sticker” phrase “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Seattle, Washington, and Jefferson County, Kentucky, had adopted voluntary plans that took race into account in assigning students to school, for the purpose of achieving greater integration. The plans were adopted in part to overcome segregation caused by racial discrimination in housing. Lead counsel for the parents challenging the plans was Federalist Society lawyer Harry J.F. Korrell. Paul D. Clement, a prominent Federalist Society lawyer, at the time solicitor general of the United States, filed an amicus brief challenging the plans on behalf of the federal government. Other Federalist Society lawyers filed amicus briefs on behalf of a variety of conservative groups.
Recognizing that previous cases had already rejected the “make-up-for-past-wrongs” rationale for affirmative action, the challengers aimed their sights on the only basis left — diversity. Federalist Society lawyers and their allies had bombarded the federal courts with briefs arguing that diversity was not a compelling government interest ever since Justice Powell first suggested it might be in 1978 in Regents of the University of California v. Bakke. The Supreme Court explicitly recognized diversity in higher education, broadly defined as “all factors that may contribute to student body diversity,” as a compelling interest that would pass the strict scrutiny test in 2003. Grutter v. Bollinger upheld the holistic affirmative action plan of Michigan Law School, while at the same time striking down the less nuanced plan of the College at the University of Michigan which awarded a flat number of points to all African American, Hispanic and Native American applicants.
In Parents Involved, the Federalist Society Justices — Roberts, Scalia, Thomas and Alito — limited diversity as a permissible justification for taking race into account to institutions of higher education. The school authorities in Parents Involved argued that “educational and broader socialization benefits flow from a racially diverse learning environment.” They were specifically seeking racial diversity, not the broader diversity defined in Grutter, and argued “it makes sense to promote that interest directly by relying on race alone.” Roberts rejected their arguments, insisting that seeking the racial balance of individual schools mirror the racial balance of the district as a whole was racial balancing “pure and simple,” an illegitimate goal in the view of conservatives. He warned that racial balancing would effectively assure that race would always be relevant in American life, as if it had magically become irrelevant.
Strikingly, Justice Thomas accused the dissenting justices, who argued for deference to the school officials’ opinions about what was necessary to achieve integration, of taking the same approach that the “segregationists” had taken in Brown v. Board of Education. Not surprisingly, no other member of the court sided with Thomas on this preposterous comparison, not even the other opponents of race conscious decision-making. Thomas claimed that the racial balancing programs of the school districts were motivated only by “an interest in classroom aesthetics and a hypersensitivity to elite sensibilities.” He echoed a common conservative criticism of affirmative action, that it is driven by the agenda of the liberal academic “elite,” notwithstanding that the plans struck down were those of local school authorities.
Federalist Society lawyers prominently argued against affirmative action in higher education admissions in all the leading cases of the past several years. The former vice chairman of the Federalist Society Civil Rights Practice Group, Michael Rosman, and prominent Federalist Society lawyer, Theodore Olson, represented Cheryl Hopwood and other white students who successfully challenged race-conscious selection at the University of Texas Law School in 1996. Rosman also represented the white students who challenged the practice at the University of Michigan in the Grutter case. Olson had been appointed solicitor general of the United States by President George W. Bush, and he and Brian W. Jones, a former vice chairman of the Federalist Society Civil Rights Practice Group, filed an amicus brief on behalf of the federal government opposing affirmative action in Grutter. Numerous other Federalist Society lawyers also filed amicus briefs challenging the program.
Federalist Society lawyers in the firm of Consovoy McCarthy LLC represented Abigail Fisher, a white plaintiff who challenged affirmative action at the University of Texas’s flagship school at Austin. They were supported by a flood of amicus briefs from Federalist Society lawyers. Recruited by anti-affirmative action deep-pocketed activist Edward Blum, the plaintiff and her lawyers challenged the holistic admissions process that counted race as one factor in the complex calculus, along the lines Justice Powell had suggested in Bakke. With nearly 30,000 applications per year, it was of course not possible to quantify the part played by one’s race in the final decisions. What is known is that only 58 Black applicants were admitted through this route. Justice Kennedy tellingly asked Fisher’s lawyer during oral argument: “If it’s so few minority admits, then what’s the problem?”
In June of 2013, the Supreme Court vacated the lower courts’ decisions in favor of the university. It sent the case back with instructions to apply a “searching and demanding” strict scrutiny to the race-conscious selection process. Writing separately, Justices Scalia and Thomas would have explicitly overturned Grutter and put an end to any weighing of race. Civil rights advocates feared they may have gotten their way.
Surprisingly, when the lower courts again ruled in favor of the University and the case returned to the Supreme Court in 2016, a slim four-to-three majority (the late Antonin Scalia’s seat was still not filled because Senate leader Mitch McConnell refused to take up President Obama’s choice, Merrick Garland) concluded that the university’s race-preference barely passed constitutional muster. So, the matter stood as the current Supreme Court term began in October 2022.
How the Federalist Society Calls the Shots
The Federalist Society marshaled all its rich resources to strike the fatal blow against affirmative action in the Harvard/UNC cases. Rather than bringing lawsuits on behalf of individual students, the lawyers sued on behalf of a nonprofit organization, Students for Fair Admission, Inc. (SFFA). This avoided the embarrassment that individual white plaintiffs could cause. In the University of Texas case, it wasn’t at all clear that Abigail Fisher was the victim of affirmative action so much as her less-than-stellar academic record. And at the end of the earlier Hopwood case, the district court explicitly found that the white plaintiffs were not qualified for admission to the University of Texas law school. Finding actual Asian American students willing to oppose programs that diversified their student bodies was also no doubt a challenge.
SFFA was incorporated in 2014 by Edward Blum, Abigail Fisher and Richard Fisher. Blum is a fellow at the right-wing American Enterprise Institute. SFFA had all of 47 members when it initially sued Harvard, including Asian Americans who had allegedly applied to and been rejected by the university. By 2017, it claimed approximately 20,000 members.
SFFA is represented by Federalist Society lawyers in Consovoy McCarthy PLLC, in Arlington, Virginia. The firm has employed many former clerks of Justice Clarence Thomas. Challenging affirmative action is not only an ideological imperative for these lawyers, it also pays well. From 2015, when they filed suit against Harvard, through 2020, the last year for which SFFA’s IRS Form 990 is available online, the firm billed and collected $5,835,945 in fees from SFFA. No doubt they have billed additional substantial sums in 2022 and 2023 for work in the Supreme Court. Lawyers for the NAACP and similar public interest groups representing the real victims of discrimination — minority students — do not make a fraction of that kind of money.
SFFA is funded by donations, including $1.5 million in 2018 from Donors Trust, $500,000 in 2019 from the Searle Freedom Trust, and $250,000 in 2019 from the Sarah Scaife Foundation. Donors Trust is a dark money vehicle that funnels hundreds of millions of dollars from anonymous conservative donors to groups that back their causes. Andy Kroll has called it the “dark-money ATM of the conservative movement.” It is a major donor to the Federalist Society. In addition to representing the plaintiffs in the Harvard and UNC cases, Federalist Society lawyers authored 26 of the 30 amicus briefs that were filed in support of SFFA in the Supreme Court.
The Federalist Society claims that it does not take positions on legal or public policy issues. Their literature states that repeatedly. We are to assume that the activities we’ve described above are merely those of individual members. That’s nonsense. What Federalist Society lawyers have done with respect to race and the law required sophisticated organization, sustained coordination and the channeling of huge resources, including dark money. That work was done under the umbrella of the Federalist Society, chronicled on its website, discussed at its meetings, spearheaded by its most prominent lawyers and funded by its patrons. According to its most recent annual report (2021), the society has over 100 lawyer chapters, over 200 student chapters, hosts nearly 1400 events in person each year, produces podcasts that are downloaded over 200,000 times per year, has its own film studio and has had over 16 million views on YouTube. The society spends over $17 million per year and has assets in excess of $35 million. Of paramount importance, anti-affirmative action litigation could not have been successful without the Federalist Society’s project of radically remaking the federal judiciary over the course of four Republican presidencies.
The influence of the Federalist Society on the appointment of federal judges and Supreme Court justices is virtually unprecedented in our history. Every Republican president since Reagan has had a Federalist Society member in the White House vetting judges. As a thought experiment, imagine the outcry from the right if Democratic presidents took their marching orders from the National Lawyers Guild or the American Civil Liberties Union.
The Federalist Society’s cynical insistence on a colorblind constitution flies in the face of contemporary American reality. Racism remains deeply ingrained in our society, as any attentive reader of a daily newspaper knows. Yet it’s no surprise that the current Supreme Court ruled in favor of the Federalist Society in the Harvard/UNC cases. These were Federalist Society lawyers arguing before Federalist Society judges, a scenario that is repeated often across the country. They attend Federalist Society conferences together, taking turns speaking at the dais, and the judges are wined and dined by friendly donors (as recently disclosed in the case of Clarence Thomas). The Federalist Society began with the goal to change the law by changing the judges. They have succeeded dramatically.
This is what makes the assault on affirmative action so extraordinary. When Thurgood Marshall orchestrated the challenge to school segregation in the decades leading up to the landmark decision in Brown v. Board of Education (the Justice Department of that time sided with the plaintiffs seeking integration), he did so before judges who were at best indifferent to the plight of Black Americans, and sometimes outright hostile. The Supreme Court was initially quite divided on the matter of overturning the infamous Plessy v. Ferguson precedent that legalized Jim Crow. It was only the death of Chief Justice Vinson and the skillful leadership of his successor, Earl Warren, that produced the unanimous pronouncement of Brown.
Not so for the Federalist Society lawyers who have now achieved their goal of ending efforts designed to keep open for minorities the university pipeline into politics, business, medicine, law, and other professions. (Interestingly, the one pipeline the court left open is through the military academies.) In effect, they had chosen the judges they appeared before, most importantly their six fellows on the court, much as gerrymandering now permits legislators to choose their voters, rather than the other way around.
The Effective End to Affirmative Action
The court’s decision in the Harvard and UNC cases will have a devastating and long-range impact. The concession offered by Roberts that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise” is largely meaningless, as he follows it immediately by warning that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” Justice Sotomayor aptly describes this purported olive branch as “an attempt to put lipstick on a pig.” Given the history of dogged opposition to affirmative action by Roberts and the other Federalist Society justices, one cannot imagine any successful work-around that includes race-conscious elements.
Erwin Chemerinsky, dean of the Law School at the University of California at Berkeley, has stated, “In light of the long history of race discrimination, and current racial inequalities, considering race is essential to treating people equal. The profound impact of eliminating affirmative action is evident in states that have done so. After California adopted Proposition 209 in 1996, which eliminated affirmative action, the number of Black and Latinx freshmen at UCLA and Berkeley fell by 50 percent.” Professor Olympia Duhart, co-president of the Society of American Law Teachers, stated, “The Supreme Court’s decision in Students for Fair Admissions presents a dangerous threat to diversity and the still unfinished fight for racial justice. Prohibiting colleges and universities from considering race as one of many factors admissions officers consider will impair the racial and ethnic diversity of university and law school classrooms across the country.”
Only a return to the principle that race-conscious measures are not just permissible but necessary to overcome the effects of social discrimination will allow meaningful steps by the government to create a racially fair and just country. Justices Brennan, White, Marshall and Blackmun of the Supreme Court recognized this in their opinion in Bakke in 1978. We need judges with their keen awareness of the realities of American life back on the bench. To do that, we desperately need a counter to the Federalist Society’s overblown influence on law and public policy.