Bench Memos

Law & the Courts

The Judicial Campaign to Silence the Federalist Society (Part 4)

(Carlos Jasso/Reuters)

The damage threatened by the Committee on Codes of Conduct’s draft advisory opinion is not limited to attorneys’ professional organizations and educational institutions. It extends to strata of society that are reflected in any number of religious and other civic organizations.

Religious organizations are very active in advocating on legislative issues and advancing their positions in court when they deem it appropriate. Here are examples from three of the nation’s largest denominations:

  • Through the United States Conference of Catholic Bishops (USCCB), the Roman Catholic Church engages in extensive advocacy. They set up an action center urging Catholics to advocate federal legislation on a variety of topics and even created a separate Justice for Immigrants campaign that focuses on migration and refugee issues. Member bishops regularly write to executive branch officials and submit congressional testimony to promote international justice and peace. The USCCB even issued a manual to help organize trips to Capitol Hill. It has filed amicus briefs in some of the most prominent Supreme Court cases, including Obergefell v. Hodges (2015), the same-sex marriage case, the First Amendment case Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and the three pending cases regarding sexual orientation and transgender status under Title VII.
  • The Southern Baptist Convention (SBC) has long engaged in issue advocacy on a number of levels, in recent decades through the Ethics & Religious Liberty Commission (ERLC), which is its public policy arm. The ERLC advocates for legislation relating to issues ranging from immigration to education to health care to abortion, and has filed amicus briefs in a number of appellate cases. The Baptist Joint Committee for Religious Liberty (BJC), initially created by the SBC before the two entities parted ways and more recently funded by other Baptist entities, now represents 16 supporting organizations and advocates in Congress and in the courts on such issues as church electioneering, government funding, public prayer, and religious displays. Both entities engage in judicial advocacy. In fact, the ERLC and BJC each filed an amicus brief in Masterpiece Cakeshop and took opposing positions in that case. In the three pending Title VII cases, ERLC joined USCCB’s amicus brief.
  • The Church of Jesus Christ of Latter-Day Saints (the Mormons) has a public-affairs network that helps connect church members to government officials. It has taken positions on issues including religious freedom, medical marijuana, immigration, and the pending Equality Act addressing sexual orientation and transgender status. The church also signed on to amicus briefs in Obergefell, Masterpiece Cakeshop, and the three pending Title VII cases.

And that is not to mention any number of other religious organizations, from Agudath Israel of America to the United Church of Christ to the Evangelical Lutheran Church in America, that engage in similar multi-branch advocacy. The vast majority of judges throughout American history have had a religious affiliation, whether formal or informal. As absurd and offensive — not to mention unconstitutional — as it would seem for the Committee on Codes of Conduct to prohibit judges from being members of religious denominations, that is the conclusion that would follow from a ban on judges belonging to a group like the Federalist Society that does not engage in any issue advocacy.

Another form of civic engagement important to numerous judges throughout history stems from their military service. Not only have the innumerable veterans who have served on the bench taken pride in their military service, but most of the Supreme Court justices who have died over the last 50 years are buried in Arlington National Cemetery, and most of them have their military ranks engraved on their headstones. The great Justice John Marshall Harlan was commander of the D.C. commandery of the Military Order of the Loyal Legion, a group of Union officers who had served during the Civil War, during his tenure on the Supreme Court, and he wore the organization’s rosette on his lapel for his official portrait that hangs at the Court.

Two of the largest veterans’ groups over the last century, the American Legion and the Veterans of Foreign Wars (VFW), engage in extensive advocacy. The Legion’s national organization sets a legislative agenda for each Congress. Additional agendas are set by subdivisions of the Legion, such as the 2020 legislative agenda set by its Department of New York targeting state legislators in Albany. Before it was a litigant itself in the Bladensburg Peace Cross case the Supreme Court decided last year, the Legion has a long track record of not only lobbying Congress, but also advocating before the Court in amicus briefs.

The VFW similarly issues a policy agenda on an annual basis and engages in advocacy at all levels of government. It set up a grassroots VFW Action Corps to rally public support for its legislative agenda. The organization also has filed numerous amicus briefs in the Supreme Court on issues impacting veterans, including one defending the Bladensburg Peace Cross during the previous term.

The list of veterans’ groups not shy about their multi-branch advocacy goes on from there, from the Military Order of the Purple Heart to the Iraq and Afghanistan Veterans of America.

Many other respected civic organizations lobby elected officials and/or file amicus briefs in court, including the United Way (the California branch of which signed a brief in Department of Commerce v. New York, the census case decided last year), the Red Cross, Feeding America, and the Boys & Girls Clubs of America.

However nonpartisan the above groups appear, they all engage in advocacy that the Federalist Society has always avoided.

Which brings us back to the relevant judicial ethical standard. The Commentary to Canon 4 asserts, “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives.” The Codes of Conduct Committee is well aware of this. It quotes this language in its draft advisory opinion. Canon 4 begins, “A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects.”

Have committee members really thought through what that means? The consequence of their proposed prohibition on judicial membership would be to virtually separate judges from the society in which they live. It would encourage — even require — judges to become societal eunuchs cut off from their religious and civic connections.

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