Supreme Court Justice Neil M. Gorsuch is slated to speak Friday night at a Federalist Society conference. The Federalist Society is a conservative legal organization; this weekend’s event includes talks and appearances by Republican Party luminaries including former vice president Mike Pence, Florida Gov. Ron DeSantis, and Kayleigh McEnany, who served as White House press secretary under President Donald Trump. The news media have been barred from attending.
Supreme Court justices routinely speak at partisan gatherings like this. However, our research suggests that Americans see this as inappropriate for a judge — and that if the justices regularly repeat such behavior, they could erode public support for the court.
What is the Federalist Society?
The Federalist Society was founded in 1982 by students at elite laws schools who wanted to counter what they perceived to be a liberal legal establishment. Since its founding, the Federalist Society has had a profound influence in the legal world, becoming the intellectual core of the conservative legal movement, in several ways.
The society has been incredibly effective at training and screening potential judges who are then seated in some of the most prestigious judgeships in the country, including on the Supreme Court. For example, Chief Justice John G. Roberts Jr. and Associate Justices Samuel A. Alito Jr., Clarence Thomas, Brett M. Kavanaugh, Gorsuch and Amy Coney Barrett all have ties to the Federalist Society. The organization has been influential in reshaping lower federal courts, as well.
Further, research finds that the Federalist Society influences the development of the law through its writings, trainings, advocacy and ability to exert pressure on members to stay on message. For instance, as political scientist and TMC editor Amanda Hollis-Brusky has shown, on issues like campaign finance regulation and the right to keep and bear arms, the Federalist Society helped get the Supreme Court to accept legal arguments that were previously outside the mainstream, rejected by the conventional legal establishment.
The Federalist Society regularly hosts events throughout the country discussing law and the Constitution. These events commonly feature speeches by prominent conservative politicians, and Supreme Court justices regularly show up or even deliver keynote addresses.
To be sure, the Federalist Society would not classify itself as a “political organization,” although some of its founding documents would suggest that it is. Whatever its categorization, it regularly brings together conservative judges and Republican politicians, indicating a clear political leaning.
Do Americans care what Supreme Court justices do?
Americans do indeed pay attention to how the justices behave off the bench, research finds, particularly when and where they give speeches or make comments on law. Their private remarks can change how Americans see the court. When the justices speak at conferences or events alongside prominent politicians, Americans generally think that’s unbecoming of a judge. That could hurt the Supreme Court’s desired image as an independent institution above the political fray.
What do people mean when they talk about the Supreme Court’s ‘legitimacy’?
How we did our research
To understand what Americans think of how judges behave, in March 2021 we fielded an online survey of 491 respondents, delivered by the online survey platform Lucid. The survey was quota-sampled to match national benchmarks from the U.S. census.
We asked respondents whether they felt it was appropriate for various kinds of people to speak at a meeting hosted by a political organization. Federalist Society events, like the one at which Gorsuch will be speaking, are consistent with our survey questions, as they frequently feature keynote addresses by prominent Republican and conservative politicians to discuss law and policy.
Specifically, we asked survey participants:
We then asked about a Supreme Court justice, a D.C. Circuit Court judge, a member of Congress, the president and the head of the Environmental Protection Agency. Respondents could choose from a six-point scale that ranged from “very inappropriate” to “very appropriate.”
A few things stand out from our results. First, Americans assess the appropriateness of judges’ behavior consistently, treating appeals court judges and Supreme Court justices similarly. More important, a majority of our respondents think it is inappropriate for Supreme Court justices to give speeches at these sort of events. In contrast, a clear majority (63 percent) thinks it is appropriate for elected politicians or bureaucrats to engage in this sort of behavior. These findings suggest that so long as Federalist Society events continue to feature prominent conservative Republican politicians, Americans will probably think it inappropriate for a Supreme Court justice to speak at the same events.
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What are the possible implications for the Supreme Court?
So long as justices keep appearing at events alongside prominent politicians, Americans are likely to have less confidence in the Supreme Court. That’s true not just for Federalist Society events, but for other events as well. Last year, Barrett gave a speech at the McConnell Center at the University of Louisville alongside Senate Minority Leader Mitch McConnell (R-Ky.).
Although Roberts famously argued during his confirmation hearing that judges are merely umpires calling “balls and strikes,” an umpire who routinely goes out to dinner with one of the coaches is likely to erode public support for the institution.
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Nathan T. Carrington (@NateCarrington) is a PhD candidate in political science at Syracuse University and a research associate at the Campbell Public Affairs Institute.
Logan Strother (@LoganRStrother) is an assistant professor of political science at Purdue University.