WASHINGTON — Supreme Court Justice Clarence Thomas called on fellow conservatives Thursday to continue the work of the late Justice Antonin Scalia to keep the power of the courts and other branches of government in check.
Thomas told 1,700 people at a dinner in honor of Scalia that the Supreme Court has too often granted rights to people that are not found in the Constitution. He cited the decision in 2015 that made same-sex marriage legal across the country.
Thomas said he and his longtime friend and colleague formed an “odd couple” of a white New Yorker and a black man from Georgia.
He paraphrased Lincoln’s Gettysburg address to exhort the audience to “be dedicated to the unfinished business for which Justice Scalia gave his last full measure of devotion.”
Thomas and Supreme Court Justice Samuel Alito were the bookends of the Thursday meeting of the Federalist Society, at which conservatives were reveling in Donald Trump’s unexpected victory in the presidential election because it is likely to result in the appointment of conservative judges to the Supreme Court and other federal courts.
Alito issued his own rallying cry to conservatives, describing religious freedom and gun rights as among “constitutional fault lines,” important issues at stake in the federal courts.
The conference of conservatism’s leading legal lights took on a new air of importance with Trump’s victory, and included a list of judges the president-elect has named as candidates to fill the vacancy created by Scalia’s death last February.
In their remarks, Thomas and Alito didn’t mention the election or the vacancy, rather using the platform to pay tribute to Scalia, a longtime colleague and conservative ally in high-court battles on hot-button social and political issues.
Alito said Scalia, a hero to many of the group’s 40,000 members, is sorely missed on the court. “We are left to ask ourselves WWSD,” what would Scalia do, Alito said. The lettering is a play on the phrase “WWJD,” for what would Jesus do.
In the halls of the conference there was little formal talk of the election or the fight to seat a new justice. But attendees packed a lunchtime panel moderated by Michigan Supreme Court Justice Joan Larsen, one of 21 people on Trump’s list, and the Supreme Court vacancy was the talk of hallway chatter among lawyers who ranged from Trump backers to those who proclaimed they would never vote for him.
Larsen served as a Supreme Court law clerk to Scalia and said he valued his clerks’ frank assessment of his work. “It was a formidable task to stand up to Justice Scalia and say, ‘You have gone too far.’ But he valued that,” Larsen said.
Later, she declined to discuss her status on Trump’s list, saying she intends to complete her state court term, which runs through 2018. “That’s really where my focus lies,” she said in a brief conversation with The Associated Press.
Other sessions were moderated by Minnesota Supreme Court Justice David Stras and federal appellate judges William Pryor and Thomas Hardiman, all on Trump’s list. Before the conference ends Saturday, nine judges on the list are expected to appear.
The court has been operating with eight justices since Scalia’s death because Senate Republicans blocked action on President Barack Obama’s nomination of Judge Merrick Garland.
The conference turned into an impromptu job fair for spots in the new administration.
“The mood has changed. Everyone is going to be thinking, ‘Maybe someone here is going to be filling Justice Scalia’s shoes,'” said Abbe Gluck, a Yale Law professor who is not a member of the group but will participate in the conference.
The Federalist Society got its start on college campuses when Ronald Reagan was in the White House. It was conceived as a way to counter what its members saw as liberal domination of the nation’s law-school faculties. Its influence was pronounced during the presidency of George W. Bush, when its leaders helped rally support for Senate confirmation of Alito and Chief Justice John Roberts. The group was so successful that it spawned copycat liberal organizations.
Speaking at a Federalist Society event in the Bush years was akin to an out-of-town preview of a Broadway show for conservative lawyers looking for administration jobs or judgeships, author Mark Tushnet has written.
Over the past eight years, the group provided a forum for opponents of Obama’s court choices and policies, although the Federalist Society itself does not endorse candidates or take policy positions. Some of its leaders backed Senate Majority Leader Mitch McConnell’s refusal to act on Garland’s nomination. That political strategy paid unexpected and huge dividends for conservatives with Trump’s election.
Now the society’s star again appears to be on the rise.
“Anytime there’s a major shift in the power of government, it’s an enormous opportunity for what is probably the collection of the smartest, most talented and most publicly minded lawyers in the country to roll up their sleeves and help advance the cause of constitutional government,” said Leonard Leo, the group’s executive vice president.
Leo met with Trump in New York on Wednesday and said afterward that Trump has yet to pare down his long list of names of Supreme Court hopefuls.
Nan Aron, the president of Alliance for Justice, said the Federalist Society “promotes a way of looking at the law which upholds the rights of the powerful and the wealthy.” Aron said it is “regrettable that so many nominees on Trump’s list are going to attend Federalist Society events.”
Yet a conservative legal scholar who has been critical of Trump said the group’s involvement in identifying candidates for judgeships and other jobs in the new administration is not something to fear.
“In fact, if the Federalist Society does play a role in identifying the president-elect’s nominees, that could be comforting to some who have reservations about Donald Trump’s administration, because such a role would suggest, at least in this area, continuity with longstanding, mainstream Republican practice,” University of Notre Dame law professor Richard Garnett said in an email.
Associated Press writer Sam Hananel contributed to this report.