Should Federalist Society Membership be an Impeachable Offense for Judges?
A Serious Exploration of the Case for Impeaching and Removing Every Federal Judge and Supreme Court Justice Who Has Ever Been a Member of the Federalist Society or Endorsed Unitary Executive Theory.
A note from the author. This article is a substantially updated and refined release of a previous piece. It runs longer than what you usually find at the Existentialist Republic. That’s because the argument we are making is that hundreds of federal judges, including six sitting Supreme Court justices, should face impeachment and removal from office for their commitment to an organization and a doctrine incompatible with the duties, responsibilities, and expectations of their position. A claim that serious cannot rest on a thousand words and a few rhetorical flourishes. It has to earn the conclusion through the doctrine, the history, the rulings, and the constitutional standard. Even if you aren’t an attorney, I hope you’ll give it a chance, since this issue is one that impacts us all, and must be addressed if we are going to restore justice. Read at your own pace. You’ll also find today’s call to action and around two dozen free Existentialist Republic Effective Activist Educational Resources, all at the end of this article. Enjoy, and thanks for getting after it.
The Federalist Society spent forty years building a captured federal judiciary, and the country now lives inside the result. The doctrine at the center of the project has a name, unitary executive theory, and the doctrine has a method: read every Democratic exercise of power narrowly and every Republican exercise of power broadly, until the Constitution means whatever the conservative legal movement needs it to mean in the case at hand. On June 29, 2026, the Supreme Court overruled Humphrey’s Executor v. United States, the 1935 precedent that had protected independent agencies from at-will presidential removal for ninety years, and the overruling completed a project that began in the Reagan administration. Membership in the Federalist Society, at any point in a legal career and subject to one cure described below, is sufficient cause to impeach and remove a federal judge.
Unitary executive theory says the president alone controls the entire executive branch of the federal government. Every official who enforces federal law, from cabinet secretaries down to line prosecutors and agency inspectors, works under presidential command. The president can hire them, fire them, override their decisions, and direct their actions. The theory rests on the opening line of Article II, which vests “the executive Power” in a president, and proponents read that grant as complete: if executive power belongs to the president, anyone exercising executive power must answer to the president, and Congress cannot insulate any executive official from presidential control.
The theory presents itself as originalism, a recovery of the framers’ design, and it was invented in the Reagan administration by lawyers who needed a constitutional argument for expanding presidential power in the directions the conservative movement wanted it expanded. Reagan took office in 1981. The Federalist Society launched the following year at Yale and the University of Chicago, founded by law students including Steven Calabresi, who went on to coauthor the law review articles claiming unitary executive theory as the framers’ original design. Edwin Meese became Attorney General in 1985, and his Justice Department produced the originalist briefs and internal memoranda that gave the doctrine an academic foundation.
Antonin Scalia joined the Court in 1986 and wrote the project’s founding dissent two years later in Morrison v. Olson, arguing that the independent counsel statute violated the Constitution by placing an executive officer outside presidential control. That dissent became the movement’s central text, taught in Federalist Society reading groups and cited in law review articles as the correct reading of Article II.
The historical claim was weak from the beginning. The first Congress, sitting with many of the people who wrote the Constitution, created executive offices with mixed structures and debated removal at length without treating presidential control as absolute. When the House took up the office of Comptroller of the Treasury in June 1789, Madison told his colleagues that the office’s duties “partake of a judiciary quality” and that there may be strong reasons why such an officer should not serve at the pleasure of the executive. Alexander Hamilton, who defended the executive articles during ratification, wrote in Federalist 77 that Senate consent “would be necessary to displace as well as to appoint,” a position the strong unitary theory cannot accommodate.
Humphrey’s Executor, decided in 1935, upheld the rule that Federal Trade Commission members could be removed only for cause, such as neglect of duty, rather than at the president’s will, and the rule stood for nine decades. Constitutional scholars including Jed Shugerman, Jane Manners, and Lev Menand have documented that the founding-era record does not support the theory’s account of original design, and that the votes of the First Congress, which the theory treats as its founding proof, show no majority for the removal power the theory claims. The theory’s proponents built the doctrine anyway, because the doctrine was useful, and they spent four decades credentialing the lawyers who would become the judges who would convert a Reagan-era policy preference into binding constitutional law.
The rulings arrived once the votes did. Free Enterprise Fund v. Public Company Accounting Oversight Board struck down an arrangement of two layers of that for-cause protection in 2010, in which board members removable only for cause answered to commissioners who were themselves removable only for cause. Seila Law v. Consumer Financial Protection Bureau struck down the structural independence of the CFPB in 2020. Collins v. Yellen did the same to the Federal Housing Finance Agency in 2021. And on June 29, 2026, Trump v. Slaughter completed the sequence. Chief Justice Roberts, writing for a six to three majority, upheld the without-cause removal of Federal Trade Commission members and wrote, “If anything more is left of Humphrey’s, we overrule it.” Justice Sotomayor’s dissent listed the agencies whose independence the ruling places in doubt, including the National Labor Relations Board, the Nuclear Regulatory Commission, and the Securities and Exchange Commission. A precedent upheld unanimously in 1935 and left in place through every intervening administration is gone, and the constitutional theory that removed it did not exist until lawyers in the Reagan administration wrote it.
A doctrine applied consistently produces symmetrical results. A president is a president. The constitutional grant of executive power in Article II does not distinguish between Republican and Democratic presidents, so a doctrine about presidential power should mean the same thing on January 19th and January 21st regardless of who took the oath in between. Two rulings decided thirteen months apart, by overlapping majorities, show what the Court does instead.
In June 2023 the Court decided Biden v. Nebraska. The Biden administration had moved to cancel federal student loan debt under the HEROES Act, a 2003 statute authorizing the Secretary of Education to “waive or modify” loan provisions in connection with a national emergency, and it invoked the COVID-19 emergency, the same emergency the first Trump administration had used to pause loan payments three years earlier. Chief Justice Roberts, writing for the majority, ruled that the administration lacked the authority.
The Court applied the major questions doctrine, which holds that agencies cannot take actions of vast economic and political significance without explicit congressional authorization, and it held that the statute’s words were not explicit enough. Congressional silence on the specific question of mass cancellation operated as a limit on executive power. The Court reached that ruling only after deciding that Missouri had standing, the legal right to bring the suit, which requires a party to show a concrete injury of its own.
Missouri’s claimed injury belonged to MOHELA, a state-created loan servicer whose finances are separate from the state treasury, and MOHELA did not join the suit and did not claim the injury for itself. Justice Kagan’s dissent said the majority had departed from settled standing principles to reach a question that was not properly before it. That same month, in United States v. Texas, the Court held eight to one that Texas and Louisiana lacked standing to challenge federal immigration enforcement priorities, because indirect fiscal effects on a state do not create an injury courts can recognize. The Court accepted a contested standing theory in one June 2023 case and rejected a state standing theory in another decided the same month, and the acceptance occurred in the case where accepting it allowed the Court to strike a Democratic program.
Thirteen months later, in July 2024, the same Court decided Trump v. United States. Donald Trump faced federal prosecution for his conduct in connection with the January 6th attack, including pressuring the Justice Department to investigate fictional election fraud, pressuring state officials to overturn certified results, and pressuring Vice President Pence to refuse to count electoral votes. Chief Justice Roberts, writing for the same six justices who had ruled against Biden, granted Trump absolute immunity for acts within his core constitutional powers and presumptive immunity for everything else within the “outer perimeter” of official conduct. The Constitution does not mention presidential immunity, and no statute grants it. The framers wrote one immunity into the document, and it is narrow and legislative.
The Speech or Debate Clause of Article I, Section 6 protects members of Congress for their legislative speech, and the same section gives them a limited privilege from arrest. No clause of any kind protects the president. Charles Pinckney, a delegate to the Convention, told the Senate in 1800 that the design was deliberate, that the Constitution intended only specified and very limited privileges for Congress, and that no privilege of that kind was intended for the executive, a statement Justice Sotomayor’s dissent quotes inside the immunity ruling itself. Hamilton confirmed the design in Federalist 69, written to assure ratifiers that the presidency would not recreate the monarchy they had fought a war to escape.
The king of Great Britain held office for life and could not be questioned in any court. The president would serve four years, could be impeached and removed during the term, and after leaving office would be “liable to prosecution and punishment in the ordinary course of law.” Some defenders of the immunity ruling read Hamilton’s word afterwards, which appears earlier in the same sentence, as a rule that prosecution requires prior impeachment and conviction.
The essay cannot support that reading, because the essay’s whole purpose was to deny that the president would hold the immunity the king held, and a reading under which a president commits crimes in office and escapes prosecution forever after a partisan acquittal recreates the immunity Hamilton was denying. The word describes the ordinary order of events, since a sitting president would not generally stand criminal trial while holding the office. The framers gave legislators one narrow written immunity and gave the president none, and two hundred thirty-seven years later the Roberts Court created for the president the immunity the document does not contain. The majority saw the record. Roberts described the Pinckney excerpts as the dissent’s most compelling evidence, then dismissed the argument they support as “now-discredited.” The Court read the founding case against executive immunity and overrode it.
Congressional silence on student loan cancellation operated as a limit on Democratic executive power. Constitutional silence on criminal immunity operated as a license for Republican executive power. The same Court, the same six justices, opposite analytical methods, and each outcome aligned with the political project the Federalist Society has pursued for forty years. The pattern reaches past these two cases. Stephen Vladeck’s research on the shadow docket documents dozens of emergency interventions favoring Republican applicants and a much smaller number favoring Democratic ones.
Unitary executive theory is a substitute constitution. The claim sounds rhetorical and it is meant literally, on four grounds. The text of Article II vests executive power in the president and requires him to take care that the laws be faithfully executed, language that imposes an obligation rather than granting unilateral control over every officer. The framers declined to grant what the doctrine claims, as Federalist 77 and the Convention record show. The first Congress, which included many of the document’s authors, built executive offices with mixed structures and debated the Comptroller’s independence on the merits. And no court endorsed the strong version of the theory for the Constitution’s first two centuries, until a political movement that could not amend the document through Article V installed its preferred version through judicial appointments instead. A doctrine with those four properties functions as a replacement for the Constitution rather than an interpretation of it.
The framers anticipated judicial corruption and wrote the remedy into the document. Federal judges hold office “during good Behaviour” under Article III, Section 1, and the House may impeach and the Senate may remove a judge who fails that standard. Good behavior has always meant something more demanding than not committing crimes. Hamilton called the standard “one of the most valuable of the modern improvements” in Federalist 78 and treated it as a substantive condition on tenure. Joseph Story wrote in his Commentaries on the Constitution, published in 1833, that judges could be impeached for “official misconduct” demonstrating unfitness for the office, including partiality and open violation of constitutional duty.
The judicial oath in 28 U.S.C. Section 453 requires every federal judge to swear to “administer justice without respect to persons” and commits the judge to faithful and impartial performance of every duty under the Constitution and laws of the United States. The oath has content. It binds the judge to the Constitution the country ratified, and a judge who swears it while committed to a different constitution has violated the oath at the moment of commitment. The rulings that follow are evidence of the violation. The commitment is the violation.
Membership alone is disqualifying, and the year matters to why. In 1985 a law student could join the Federalist Society for the debates and the professional connections without endorsing any constitutional project, and many did. That defense had substance when the organization was young and its function was unsettled. The function is now settled, public, and documented by the organization itself. The Society’s own event materials describe its co-chairman, Leonard Leo, as an adviser to the president on judicial selection who assisted with Supreme Court confirmations. Leo built the lists from which the Gorsuch, Kavanaugh, and Barrett nominations were chosen. Senator Sheldon Whitehouse documented on the Senate floor that 86 percent of the first Trump administration’s Supreme Court and appellate nominees were or had been members.
The co-founder’s scholarship supplied the doctrine, the membership network supplied the candidates, and the appointments supplied the rulings. Joining an organization that has performed that function openly for four decades constitutes endorsement of the function. So the standard has three independent routes. Endorsement of unitary executive theory is sufficient on its own, because the endorsement is a commitment to a constitution other than the ratified one. Membership is sufficient on its own, because joining is endorsement once the function is public. And a record of constitutional principle applied selectively along partisan lines is sufficient on its own, because it demonstrates the partiality the oath forbids. The six justices in the Trump v. United States majority present all three at once.
The First Amendment objection deserves a full answer, and the full answer names the adverse cases first. In Keyishian v. Board of Regents, decided in 1967, the Supreme Court struck down New York’s rules disqualifying teachers for membership in listed organizations, holding that knowing membership, without specific intent to further an organization’s unlawful aims, cannot justify exclusion from public employment. Schware v. Board of Bar Examiners and Baird v. State Bar of Arizona applied the same principle to bar admission. Read as court doctrine, those cases defeat a membership standard, and any lawyer who reads this argument will cite them. The answer is that no court applies them here. Nixon v. United States, decided in 1993 and concerning a federal judge named Walter Nixon rather than a president, held that courts cannot review how the Senate tries an impeachment, because the Constitution gives the House the sole power of impeachment and the Senate the sole power to try impeachments. Good behavior is a fitness standard the political branches enforce through a political process.
The Communist Party cases instruct courts on what they may not do to a professor or a bar applicant. They do not instruct the House on what fails the fitness standard for life tenure. The deeper answer is that the Constitution itself conditions office on belief. Article VI, Section 3 commands every federal and state officer to swear an oath to support the Constitution, a belief-based qualification by design, and a nominee who tells the Senate they reject the Constitution is ineligible for the bench without any First Amendment problem. Section 3 of the Fourteenth Amendment bars from office anyone who swore the oath and then engaged in insurrection or gave aid and comfort to its enemies, a disqualification that turns on alignment against the constitutional order and requires no criminal conviction.
The Code of Conduct for United States Judges already restricts judges’ organizational memberships because some affiliations compromise the impartiality the office requires. Guideline A of the National Security Adjudicative Guidelines conditions eligibility for classified access on allegiance to the United States. The settled principle across all four is that office may be conditioned on commitments compatible with the office’s duties, and commitment to a substitute constitution is incompatible with the duties of a federal judge. No one goes to prison under this standard for joining the Federalist Society, and no one loses the right to speak, publish, organize, or litigate. What a member cannot do is hold Article III office, for the same reason a nominee who rejects the Constitution cannot.
The other precedent critics will raise is Samuel Chase. The House impeached Justice Chase in 1804 over his conduct of politically charged trials and a partisan grand jury charge, the Senate acquitted him on March 1, 1805, and the acquittal became the practice that judges are not removed over their rulings. Chase also argued that only an indictable crime could support a judicial impeachment, and his acquittal is cited for that position too.
The practice deserves respect, and it does not reach this case. The norm protects jurisprudential disagreement inside the legitimate range of constitutional interpretation, and the standard argued here excludes that disagreement by its terms: a judge who reads a clause differently is doing the job, while a judge committed to a body of doctrine that contradicts the text, the history, and the precedent in order to deliver predetermined partisan outcomes is executing a project instead, and the good behavior standard exists for that difference. The indictable-crime reading answers to the authorities cited above, since Hamilton in Federalist 78 and Story in his Commentaries both treated good behavior as a standard more demanding than criminal law. And the Chase acquittal confirms the forum, because the Senate, and no court, decided what the standard required.
The standard reaches membership at any point in a career, and it can be cured. Section 3 of the Fourteenth Amendment, the provision whose structure this standard borrows, lets Congress remove the disqualification by a two-thirds vote of each House, because its authors understood that alignment can end. The parallel cure here is public repudiation. A judge who joined as a student, resigned, renounced the project on the record, and built a judicial record demonstrating the impartiality the oath requires has cured the disqualification.
A judge who let a membership lapse quietly while continuing to deliver the project’s outputs has not. The cure is the renunciation and the record together. Silence cures nothing. The country has already run this test on a Supreme Court justice. Hugo Black joined the Ku Klux Klan in Alabama in 1923 and resigned in 1925 before his Senate run, and the membership became national news weeks after his 1937 confirmation, with editorial boards and politicians calling for his resignation. Joining the Klan was legal, and the legality of joining formed no part of Black’s defense. He answered with a national radio address on October 1, 1937, stating that he had joined, resigned, and never rejoined, and pointing to his Senate record on civil and religious rights. The fight was conducted entirely on the terrain this standard names: membership as the disqualification question, renunciation and record as the answer.
A membership standard operates in both directions. A future Republican House could draft articles against judges who advanced through the American Constitution Society and call it the same principle, so the principle has to be stated precisely enough to constrain everyone who invokes it. The disqualifying feature is commitment to a substitute constitution: a body of doctrine that contradicts the ratified text, the recorded history, and long-settled precedent, built for the purpose of delivering predetermined partisan outcomes. An organization warrants membership-alone treatment only when installing such a doctrine is its demonstrated function, established the way it is established above, through the doctrine’s origin, its texts, its installation in specific rulings, and its selective application. Anyone claiming another organization meets that description must meet the same burden of proof. The standard is falsifiable, and the evidence is the argument.
The scope of the remedy has to match the scope of the capture. The six justices in the Trump v. United States majority delivered the project’s decisive rulings, and the House should draft articles of impeachment against each of them. The Senate should hold trials. The proceedings perform the work of public accounting whether or not sixty-seven votes for conviction exist, because the trials place on the public record, under oath and subject to evidence, what the Court has done. Below the Supreme Court, hundreds of federal judges advanced through the same network. Each is entitled to individual articles, an individual trial, and the opportunity to demonstrate the cure. The standard stays uniform.
Impeachment sits alongside other constitutional tools. Congress can expand the Supreme Court, because Article III leaves the Court’s size to Congress. Congress can limit federal court jurisdiction over specific questions under the exceptions clause of Article III. Term limits for justices would require an Article V amendment. And the Senate can reform confirmation without any constitutional change by refusing to confirm nominees subject to the disqualification who have not cured it. Each tool exists. Each requires political power sufficient to use it, and building that power is the work in front of us.
The language of purges should be refused. Erdogan removed thousands of Turkish judges and prosecutors after the 2016 coup attempt. Orban removed sitting Hungarian judges by lowering the mandatory retirement age. Poland’s Law and Justice party restructured its courts before the Tusk government began trying to reverse the damage. Those governments establish the pattern we exist to oppose, and adopting their vocabulary hands them a rhetorical weapon while pointing toward methods that would damage the institutions that need rebuilding. Accountability through constitutional mechanisms means impeachment, court expansion, jurisdiction limits, term limits, and confirmation reform, applied through recorded votes by elected officials who answer for those votes. A judiciary drawn from a wider pool than one organization’s membership rolls requires none of the vocabulary of purges, and refusing that vocabulary leaves the argument stronger rather than weaker.
Refusing the vocabulary of purges does not mean refusing plain conclusions. In September 2025 the president signed an executive order designating antifa a domestic terrorist organization, a label applied to a decentralized movement with no membership list and no formal structure, under a designation authority that exists in no statute. The standard argued here does the opposite: it names an organization with a public membership, a written doctrine, a documented selection function, and specific rulings, and it states a test that can be checked and can be failed. So the conclusion belongs in plain words. The Federalist Society functions as the selection and installation mechanism for a constitution the United States never ratified. Commitment to that project violates the judicial oath. A judge who joined and has not repudiated it fails the good behavior standard of Article III and should be impeached, tried, and removed. Each clause of that statement rests on the record above, and each clause is open to disproof.
The framers wrote Article II to prevent a king. They wrote impeachment into the same document because they knew officials, including judges, might one day work to install one anyway. An important question for your consideration, one that may matter more than the question in the title. Can our country ever move toward a non-corrupt, accountable, modern democracy, one that serves the people rather than religious zealots and oligarchs, while Federalist Society members are poisoning the judiciary?
Now is the time to act. We are the movement. That movement makes the heat. That heat makes the change.
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THE CALL TO ACTION
Category: judicial accountability.
Difficulty Rating: 2/10 to 3/10 depending on the option. Option 1 takes five minutes. Option 4 takes a printer, an envelope, and a stamp. If none of them fit today, that is fine.
Who you are contacting:
Your U.S. House member and your two U.S. Senators. Find all three at congress.gov.
Your state representative and state senator. Find them at openstates.org. State legislatures elect judges outright in Virginia and South Carolina, state senates confirm the governor’s judicial appointees in a number of states, and Article VI binds state judges to the federal Constitution by the same oath, so the standard applies wherever your state gives your legislators a role in selecting judges.
What you are asking for: affirmative, on-the-record support for the impeachment and removal of judges committed to unitary executive theory or the Federalist Society who have not publicly repudiated both, starting with the six justices in the Trump v. United States majority. State plainly that a form letter or a non-answer will be treated for what it is, a lack of courage in a moment that demands as much.
Five ways to deliver. Pick as many or as few as you are comfortable with.
Email. Paste the script below into the office contact form. Include your name and street address so you are logged as a constituent.
Call. Read the script to the staffer who answers, or just the three questions. Offices tally calls by issue.
Fax. FaxZero sends up to five free faxes a day to House and Senate offices from your browser, no signup required. Paste the script into the cover page text box, attach the first pages of this article as a PDF, and click the confirmation link FaxZero emails you. The free tier caps pages per fax, so the full article travels by option 4.
Print and mail. Print this article, write your name, your street address, and the sentence “I am asking for your affirmative support for the impeachment standard in this article, on the record” on the first page, and mail it to the district office or the capitol office. A printed article arrives on a desk instead of in a queue.
Email to your local Democrats/Indivisible or other group and ask them to share this article with their members to consider a group endorsement.
The script, for email, phone, or fax:
“I am a constituent asking for your affirmative position, on the record, on three questions.
First, will you support articles of impeachment against, and the removal of, the six justices in the Trump v. United States majority? Their ruling granted the president criminal immunity that appears nowhere in the Constitution. On June 29 the same majority overruled Humphrey’s Executor, a ninety-year-old precedent protecting independent agencies, completing a series of rulings installing unitary executive theory, a doctrine invented in the 1980s.
Second, do you agree that Federalist Society membership or endorsement of unitary executive theory, without public repudiation, violates the judicial oath to administer justice without respect to persons and fails the good behavior standard of Article III? The organization’s leadership built the candidate lists from which three of the six were chosen, and 86 percent of the first Trump administration’s Supreme Court and appellate nominees were or had been members.
Third, will you publicly support refusing Senate confirmation to any future judicial nominee committed to either who has not publicly repudiated that commitment?
I am asking for affirmative answers to all three, on the record. A form letter or a non-answer will be treated for what it is, a lack of courage in a moment that demands as much.”
If you are writing to a state legislator, add this line to the script: “Where your chamber elects, confirms, or screens judges, will you apply this same standard to state judicial selection, and will you press our federal delegation to act on it in Washington D.C.?”
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🤔 Well if their job description (such as a judge or justice) is to stay impartial and interpret the law based on facts + common sense + precedents and NOT personal opinions + biases- THEN HELL YES BEING A MEMBER OF A SOCIETY OR GROUP THAT PREACHES THE COMPLETE OPPOSITE SHOULD BE DISQUALIFYING!!!
Federalist Society has become antidemocratic. Judges who belong to this cult are antidemocratic and should resign or be impeached