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    "original_url": "https:\/\/www.nytimes.com\/2026\/02\/16\/opinion\/alternative-federalist-society.html?campaign_id=9&emc=edit_nn_20260216&instance_id=171166&nl=the-morning&regi_id=122976029&segment_id=215349&user_id=b25c5730c89e0c73f75709d8f1254337",
    "parsed_content": "AdvertisementSKIP ADVERTISEMENTOpinionSupported bySKIP ADVERTISEMENTGuest EssayThe Plan for a Radically Different Supreme Court Is HereFeb. 16, 2026, 5:00 a.m. ETCredit...Mia Oberl\u00e4nderListen to this article \u00b7 13:25 min Learn moreShare full articleBy Jeffrey ToobinMr. Toobin is a contributing Opinion writer and the author of \u201cThe Pardon: The Politics of Presidential Mercy.\u201dThe Federalist Society, the conservative legal organization founded in 1982, is justly famous for providing a right-wing agenda for the courts and for promoting its allies to be judges and justices. The American Constitution Society, its lesser-known liberal counterpart, recently announced new leadership, and a new goal: to expand the use of the courts to oppose President Trump\u2019s agenda.Phil Brest, the new president of the A.C.S., which was founded in 2001, participated in a largely unsung success of Joe Biden\u2019s presidency: Serving in Mr. Biden\u2019s White House counsel\u2019s office, Mr. Brest, now 38, helped the president nominate and win confirmation of 235 federal judges, which is more than Mr. Trump\u2019s total in his first term.Those judges \u2014 and others appointed by Democratic presidents \u2014 have proved that the most effective resistance to Mr. Trump has come not from Democratic politicians but rather from federal judges. In the last several weeks alone, these judges, many of them Biden appointees, have ordered the release from immigration custody of five-year-old Liam Ramos and his father and their return to their home in Minnesota; blocked the Trump administration from ending temporary protections from deportation that had been granted to thousands of Ethiopians living in the United States; and directed the Trump administration to allow members of Congress to make unannounced visits to ICE detention facilities.According to a Times analysis of federal appeals court rulings in 2025, judges nominated by Mr. Biden ruled in support of Mr. Trump\u2019s policies 25 percent of the time, while those appointed by Mr. Trump supported him 92 percent of the time.AdvertisementSKIP ADVERTISEMENTIn focusing on judicial appointments, Mr. Biden took a lesson from Republican presidents. Earlier Democratic presidents (and Democratic voters) had not placed great emphasis on the importance of judicial appointments. Barack Obama chided his fellow Democrats for putting too much trust in courts, writing in his 2006 book, \u201cThe Audacity of Hope,\u201d \u201cI wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.\u201dAs a candidate in 2016, Mr. Trump recognized how much Republicans cared about the courts and strove to ingratiate himself with the base of the party by promising to appoint conservatives to the bench. Advised by Leonard Leo, then the executive vice president at the Federalist Society, among other conservative luminaries, Candidate Trump put forward a list of potential Supreme Court nominees who would advance a right-wing agenda. Mr. Trump wanted originalists, who, Mr. Leo told me in 2017, would \u201cinterpret the Constitution the way the framers meant it to be.\u201dMr. Trump\u2019s reliance on the Federalist Society continued into his first term in office. \u201cOur opponents of judicial nominees frequently claim the president has outsourced his selection of judges,\u201d Donald McGahn, who was then the White House counsel, said to a Federalist Society gathering in 2017. \u201cThat is completely false. I\u2019ve been a member of the Federalist Society since law school. Still am. So, frankly, it seems like it\u2019s been in-sourced.\u201dSign up for the Opinion Today newsletter Get expert analysis of the news and a guide to the big ideas shaping the world every weekday morning. Get it sent to your inbox.By now, the Federalist takeover of the Supreme Court is nearly complete. At the Federalists\u2019 40th anniversary celebration in Washington in 2022, Justices Samuel Alito and Amy Coney Barrett were among the speakers, and Justices Neil Gorsuch and Brett Kavanaugh also attended. Chief Justice John G. Roberts spoke at the group\u2019s annual conference in 2007.Justices Barrett, Alito and Kavanaugh were all Federalist Society members at some point in their lives; it\u2019s unclear whether Justices Gorsuch and Clarence Thomas were formal members, but they have spoken often at Federalist Society events. Of President Trump\u2019s first 30 appointments to the federal appeals courts, 25 are or were members of the Federalist Society.AdvertisementSKIP ADVERTISEMENTThe American Constitution Society can\u2019t boast the same kind of influence. Mr. Brest told me that 25 percent of Mr. Biden\u2019s judicial appointees \u201cwere either recommended by A.C.S. or affiliated with A.C.S.\u201d \u2014 a fairly modest connection. None of the three Democratic appointees now on the Supreme Court \u2014 Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson \u2014 were ever A.C.S. members, though all have spoken at A.C.S. events.In part, the Federalists dominate A.C.S. because of greater financial resources \u2014 in 2024, it drew $22.5 million in revenue versus less than $6 million for A.C.S. \u2014 but also because of a greater investment in the realm of ideas.The Federalist Society was created when the liberalism of the Warren court era still influenced the Supreme Court. The goal of the Federalists was not just to replace those justices but also to come up with an ideological framework that could replace that of the earlier era.Inspired by Antonin Scalia, then a law professor, who was one of the Federalists\u2019 first faculty advisers, many of the early Federalists embraced originalism as the correct mode of constitutional interpretation. Originalism posits that the words of the Constitution should be interpreted according to their generally understood public meaning at the time of ratification.In concrete terms, an originalist approach to the Constitution aligns with conservative politics. At the time of the ratification of the Bill of Rights in the 18th century and the Civil War amendments in the 19th century, for example, there was no public understanding that they or any other part of the Constitution protected a right to abortion.AdvertisementSKIP ADVERTISEMENTAs Republican appointees \u2014 that is, originalists \u2014 came to dominate the court, their rejection of a historical grounding for a right to abortion led to the Dobbs decision in 2022, which overturned Roe v. Wade and ended the constitutional protection of a woman\u2019s right to choose. In a similar way, the originalists employed their reading of the history of the Constitution to establish a personal right to bear arms and to forbid affirmative action on the basis of race.It\u2019s a measure of the triumph of originalism, and thus of the Federalist Society, that even Democratic appointees to the Supreme Court feel compelled to recognize it, in theory if not always in practice. During Justice Jackson\u2019s Supreme Court confirmation hearing in 2022, she told the senators, \u201cThe Supreme Court now very clearly has determined that in order to interpret provisions of the Constitution, we look to the time of the founding, and we ascertain based on what the original public meaning of the words of the Constitution were at the time.\u201dOver the years, progressives have done a lot better at pointing out the weaknesses of originalism than coming up with alternatives to it. Critics of originalism have, for example, long pointed out that many of the framers themselves did not believe that their intentions should bind future generations. Moreover, the vague records of the debates over ratification \u2014 and the disagreements among even those who voted in favor of the amendments \u2014 render it difficult, if not impossible, to determine a singular intent of the framers in any given case, especially in our radically different world.To be sure, too, the conservatives on the Supreme Court have sometimes chosen to ignore the text of the Constitution, much less the intentions of its authors, to reach their favored results. Chief Justice Roberts\u2019s opinion in Trump v. United States cited few specific provisions of the Constitution (nor any articulated view of the framers) that compelled the ruling preventing virtually all criminal prosecutions of former presidents for crimes committed while in office. In a similar way, Justice Kavanaugh, in his concurring opinion in Noem v. Vasquez Perdomo, wrote that \u201cspeaking Spanish or speaking English with an accent\u201d was among the legitimate reasons for immigration stops \u2014 an assertion with no basis in the text or history of the Constitution.Like many Democrats, Mr. Brest rejects originalism and believes there should be a different way to interpret the Constitution. \u201cWe have to have an affirmative message around constitutional interpretation in the same way there has to be an affirmative message around elections and politics,\u201d he told me. \u201cAnd it can\u2019t just be, \u2018We\u2019re not originalists\u2019 in the same way that A.C.S. can\u2019t just be, \u2018We\u2019re not the Federalists.\u2019 That\u2019s not how I view the organization, and that\u2019s not how I want to be part of the solution to countering originalism. There has to be an affirmative piece there.\u201dAdvertisementSKIP ADVERTISEMENTLiberals have come up with a variety of alternatives to originalism. The most famous is the one associated with the great liberal justice William J. Brennan Jr., who endorsed a \u201cliving\u201d Constitution, whose meaning changed over time to reflect \u201cthe adaptability of its great principles to cope with current problems and current needs.\u201dFormer Justice Stephen Breyer, who was appointed by a Democrat, embraced a pragmatic approach, endorsing what he called \u201cworkable\u201d solutions to constitutional dilemmas. Justice Kagan, also appointed by a Democrat, has made a touchstone of her jurisprudence respect for precedent, which, she has said, \u201cpromotes the evenhanded, predictable and consistent development of legal principles; fosters reliance on judicial decisions; and contributes to the actual and perceived integrity of the judicial process.\u201d There is even a liberal take on originalism, embodied in the work of Profs. Akhil Reed Amar and Jack M. Balkin, both at Yale Law School, which seeks to find an expansive understanding of constitutional rights in the original meaning of the document.For all their intellectual appeal, none of these alternatives to originalism have attracted much interest in the broader public. And none have successfully refuted the defense of originalism that was aptly summed up by Senator Thom Tillis, a North Carolina Republican, at the Jackson confirmation hearing: \u201cIn my opinion, a justice\u2019s job is to interpret the text and words of the Constitution as written, and give them their original meaning. I reject the notion that the Constitution is a living, evolutionary document that changes based on the impulses of five unelected justices.\u201dIn other words, outside of law school classrooms, the liberal constitutional agenda is failing. \u201cThe theories that have been put forward in the past by the left have not resonated with the public,\u201d Mr. Brest said. For all its flaws, originalism is easy to understand and sell. \u201cThe real genius of originalism is not in its intellectual heft,\u201d he explained. \u201cIt is in the framing and the messaging.\u201d \u201cAnd I think we really need to focus on the framing and messaging in a way that will resonate more with the public,\u201d he added.For now, under Mr. Brest, the A.C.S. seems headed for an approach that looks like the one that Democratic politicians have so far adopted: aimed more at opposition to Mr. Trump\u2019s record rather than on a specific, alternative vision for the Constitution. In his opening message to the group, Mr. Brest described the A.C.S. as building \u201ca bulwark against overreach by the Trump administration and the Roberts court.\u201d This is understandable, perhaps even wise, because in the view of Mr. Brest\u2019s universe of allies, the Trump administration has violated constitutional norms under any interpretive theory.AdvertisementSKIP ADVERTISEMENTMr. Brest has pledged that A.C.S. will continue its Biden-era focus on judicial appointments. \u201cAs an organization, we will stay on top of legislators, we will stay on top of the next administration, to make sure that judges are the No. 1 priority going forward,\u201d he said.As for what those judges will stand for \u2014 as opposed to what they stand against \u2014 Mr. Brest has no clear answer. He, along with other Democrats, will need one.When they do have a clear answer, they\u2019ll be taking a political risk. To put forward a theory of constitutional interpretation is to invite criticism, including from potential allies. If a new Democratic theory of the Constitution protects a woman\u2019s right to choose abortion, does it also protect the right of a trans student to participate in high school sports? If the Constitution allows a university to give a boost to African Americans in admissions, does it also have the right to reject similarly qualified Asian American students? Does the Second Amendment really protect an individual\u2019s right to bear arms? The answers to those questions may offend as many prospective judges, and voters, as they attract.The members of the Federalist Society took the risk that Democratic legal thinkers have so far avoided. Though the Federalist Society does not as a group take formal positions on issues, the Federalists gave a platform for their clear agenda and absorbed the criticism that came with it. But when they won elections and thus seats on the Supreme Court, they knew what they wanted to do and why, and they changed the face of American law.Democrats can do the same, but first they have to try.The Times is committed to publishing a diversity of letters to the editor. We\u2019d like to hear what you think about this or any of our articles. Here are some tips. And here\u2019s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, Bluesky, WhatsApp and Threads.Jeffrey Toobin is a former assistant U.S. attorney who writes about the intersection of law and politics. He is the author of \u201cThe Nine: Inside the Secret World of the Supreme Court,\u201d \u201cThe Pardon: The Politics of Presidential Mercy\u201d and other books. Share full articleRelated ContentAdvertisementSKIP ADVERTISEMENT",
    "ai_headline": "The Plan for a Radically Different Supreme Court Is Here",
    "ai_simplified_title": "Toobin Analyzes Federalist Society Influence on Supreme Court",
    "ai_excerpt": "Jeffrey Toobin analyzes the Federalist Society's influence on the Supreme Court and the American Constitution Society's efforts to counter it. The article discusses the impact of judicial appointments and the differing approaches to constitutional interpretation. It highlights the challenges faced by liberals in developing a compelling alternative to originalism.",
    "ai_subject_tags": [
        "Supreme Court",
        "Federalist Society",
        "American Constitution Society",
        "Judicial Appointments",
        "Constitutional Law",
        "Originalism",
        "Political Polarization",
        "Legal Analysis"
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