Originalism and judicial oversight: A report from the Federalist Society’s 2025 National Lawyers Convention

Late last week, Justices Brett Kavanaugh and Amy Coney Barrett took center stage at the Federalist Society’s annual gala in the nation’s capital, offering reflections on what it means to take the judicial oath and deal with public scrutiny. Moderated by Judge Trevor McFadden, who sits on the U.S. District Court for the District of Columbia, the Antonin Scalia Memorial Dinner saw the justices address a sold-out crowd at the Washington Hilton on the first night of the Federalist Society’s National Lawyers Convention. Barrett and Kavanaugh’s remarks echoed broader discussions at the convention on the Supreme Court’s embrace of originalism and the triumph of this judicial philosophy. 

McFadden kicked off the keynote event by referencing a newly established (within the hour) tradition of toasting the Constitution and noted that one of the most solemn duties of a judge “is to explicate that document in some of the most important legal cases of the day.”

Kavanaugh reflected on his tenure under President George W. Bush during the response to Sept. 11, 2001, the “central day of American government in my lifetime.” He then encouraged the law students in the room (some of whom had yet to be born in 2001) to revisit post-9/11 footage. “I watch them every year to remind myself of how the country came together, how the country rallied, and how lucky and fortunate and blessed I was and my wife Ashley was to work for President Bush.”

When asked about the various internal and external pressures she has encountered as a justice, Barrett echoed Kavanaugh’s reference to Sept. 11, saying it “calls to mind the distinction between what the president does and what the courts do, because we all think an oath that the president [takes] is very proactive. … Now, the job that the three of us have is more reactive, and we’re hearing cases and we’re defending the Constitution, but in a quieter sense.”

Barrett also discussed her faith. “I don’t think it’s any secret that I’m a Catholic,” she noted, drawing laughter from the room. Referencing St. Thomas More, who “was beheaded by Henry VIII essentially for sticking to his principles,” she said humility is what allows judges to endure criticisms without fear. 

When asked about threats against the justices, Kavanaugh credited his high school music teacher at Georgetown Prep for having them sing the hymn “Be Not Afraid” at weekly masses. “Those words were burned into my memory. And I think about Pope John Paul II, who, of course, ‘be not afraid,’ was part of his message to the world as he stood up to communism, helped stand for freedom and the dignity of human life.” 

Barrett also invoked the risks faced by the Founders: “Signing the Declaration of Independence was treason … putting what we all do and what we are all called do in the context of the greater project of America, and those who have fought for it and those who have defended it, makes my sacrifices feel pretty small in comparison, and inspires me to feel like I can go forward with courage.” 

Kavanaugh lauded Scalia for his courage: “He not only taught us originalism and textualism, but he taught us also what it meant to have a backbone … what it meant to stand up for his principles even when they weren’t popular.”

In response to a law student’s question on how conservative women can stay true to their values, Barrett discussed the pressures such individuals may face in today’s legal environment. “Defy stereotypes. You don’t have to fit it into any box,” said Barrett. “The idea that women have to fit into any particular box, that they have to hold any particular set of beliefs, or have to have their life fit in a particular mold is just ridiculous, right? … You don’t have to meet other people’s expectations, and if the values that you hold don’t match with what the conventional wisdom is for other women at your law school or other women in your profession, so what?” 

Barrett concluded more broadly that “[a]s a judge, if you are worried about having people like what you do, or you try to avoid having people criticize what you do, you will fundamentally not be focused on doing what you should do, which is upholding the law and defending the Constitution.”

Kavanaugh and Barrett were part of a long line of justices to speak at the Federalist Society’s annual banquet. Justice Neil Gorsuch spoke with retired Justice Stephen Breyer in 2024, preceded by Barrett in 2023, Justices Samuel Alito and Barrett in 2022, Alito in 2020, Kavanaugh in 2019, Gorsuch in 2017, and Justice Clarence Thomas in 2016. 

This year’s convention also marked a leadership transition, with Sheldon Gilbert, who was formerly senior lead counsel for Strategic Initiatives at Walmart, taking over as president in early 2025. 

Originalism triumphant 

In the convention’s opening address on Thursday morning, Judge Patrick Bumatay of the U.S. Court of Appeals for the 9th Circuit described the current Supreme Court as defined by history and text. “It’s no exaggeration to say that we are in the golden age of originalism,” he stated. And, given this, Bumatay had advice for his fellow judges: “While the Supreme Court jumps through the hoops of the stare decisis factors to overturn its precedent, lower court judges are free from those constraints and should always vote to overturn non-originalist [lower court] precedent – after all, we can’t always rely on the Supreme Court to clean up our messes.” 

Bumatay continued that, given originalism’s rise to the top of popular judicial philosophies, today’s originalists face a new set of questions, such as how originalism can be moved from a critique to a governing doctrine. The answer, he said, is to “be bold” – similar to the “bloodthirsty originalis[m]” of Thomas (deemed as such by Scalia, due to Thomas’ “unwavering adherence to the original public meaning of the Constitution, come hell or high water,” in the words of Bumatay).

That was far from originalism’s only mention. Judge Andrew Oldham of the U.S. Court of Appeals for the 5th Circuit, delivering Friday evening’s 24th Annual Barbara K. Olson Memorial Lecture, remarked that the living precedents of the Burger court are “falling almost as fast as the number of illegal border crossings.” Oldham also referenced Justice Elena Kagan’s statement on originalists in her confirmation hearing (“we’re all originalists now”), asking: “If we’re all originalists in Justice Kagan’s sense, then is originalism really that important? Is saying, ‘I’m an originalist,’ any different than saying, ‘I’m a lawyer?’ And if originalism really is that capacious, why come to this event instead of an [American Bar Association] event or an [American Constitution Society] event? The answer, of course, is that originalism is important. Originalism does yield clear and objective answers.”

Two decades of the Roberts court

Following the opening address, a group of advocates – Paul Clement, Cameron Norris, and state Solicitors General Matthew Rice and Scott Stewart – who have all won high-profile rulings before the Supreme Court came together to discuss landmark decisions of the 2020s on the 20th anniversary of the Roberts court. Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida, who is a former Thomas clerk, moderated the panel.

Stewart, who argued on behalf of Mississippi in Dobbs v. Jackson’s Women’s Health Organization, said that when he became the solicitor general of Mississippi in 2021, he “had no expectation the court was going to take the case.” “The first thing I did when I heard the court granted review was I printed out Roe v. Wade and went home and read it,” he said – which brought a laugh from the audience. “These are maybe things you shouldn’t say in public, but you know, here they are,” he joked. Stewart then recalled he had to settle on a strategy quickly and faced the fundamental question of what to argue: “[T]o me very clearly the right argument is that the Constitution does not protect a right to abortion. Period. You do not get more wrong as a matter of constitutional law than Roe and Casey.”

Clement reflected on several cases, including New York State Rifle & Pistol Association Inc. v. Bruen, a case that he argued in which the justices struck down New York’s stringent requirements for obtaining a license to carry a concealed firearm. “Any time you’re trying to move the goalposts in constitutional law, either getting a case overturned or getting an earlier precedent essentially reaffirmed and revivified … timing considerations are critically important.” Clement spoke on his repeated attempts to get a Second Amendment case in front of the Supreme Court, having filed “at least a dozen” certiorari petitions during the “decade worth” of dissentals written by Thomas. “One justice who gets less credit than he deserves for the terrific result in the Bruen case is the chief justice, because not only was the chief justice in the majority, but the chief justice made a conscious decision to assign the Bruen opinion to Justice Thomas,” Clement said. “And the chief had to know the kind of opinion he was going to get if you assigned the opinion to Justice Thomas.”

Rice closed out the panel, commenting on United States v. Skrmetti, which upheld Tennessee’s ban on certain medical treatments for transgender minors. Rice stated that he “thought [the decision] was a pretty clear signal from the Roberts court that the judiciary needs to leave the political battles where they belong which is in the political process and the democratic process.” Rice praised the court’s refusal to constitutionalize “one side’s view of a disputed medical question.”

A panel on Thursday afternoon also brought the Roberts court into focus, discussing the judicial oversight of district courts following Trump v. CASA, in which the court held that federal district courts lacked the authority to issue universal injunctions – orders that block a law or an executive branch action nationwide. 

Yale Law School professor Garrett West said that the opinion from Barrett is “a brilliant vindication of the formalist argument that says universal injunctions are totally impermissible – the bad news is that it practically will make almost no difference with respect to the functional problems created by the universal injunction.” West cited alternative mechanisms for motivated plaintiffs (including class actions and associational standing, where the number of members may be broad enough that the injunction is effectively universal) to accomplish the same thing. 

The panelists also discussed the court’s use of the interim docket (a hot topic at the convention, as everywhere else) to address significant legal issues, and the tensions this can create with lower courts. “Because these decisions are often provided with minimal explanation, lower courts are left guessing as to what presidential value these decisions have as the court and its justices have sent mixed signals on this,” said Stephen Spaulding, the managing director of the Kohlberg Center at the Brennan Center. “The shift does have real implications for the rule of district courts … they’re developing the records, applying the law, issuing injunctions to preserve the status quo while cases proceed. And what we’ve seen so far this year is that the Supreme Court “has issued 22 decisions on the emergency docket concerning administration policies.”

Emphasizing that the increasing trend of interim docket filings does not occur in a vacuum, the panelists also discussed the role and scope of judicial power in 2025. 

“The court’s use of the [interim] docket to address these significant legal issues and foreshadow the overruling of long-standing precedent … without offering so much as an explanation can unsettle the law and put the court in an unfavorable light,” said Spaulding. “The court’s power comes in part from the perception that its opinions are reasoned and transparent.”