My column today in the Pittsburgh Post-Gazette.

In the movie “The Bridge on the River Kwai,” Colonel Nicholson, played by Alec Guinness, leads captured British POWs in building a splendid bridge for the Japanese. His intentions are to create order and meaning that will help his men survive.

He realizes too late that he has lost sight of his greater duty in the war. His last words are, “What have I done?”

Members of the Federalist Society must now be saying the same thing.

Formally nonpartisan

The Federalist Society is a national, formally nonpartisan, legal organization that promotes a return to the values of the framers of the Constitution. The group describes itself as “a group of conservatives and libertarians interested in the current state of the legal order.”

The society “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.”

The Federalist Society played an important role in Donald Trump’s election in 2016. Trump campaigned on the promise that his judicial nominees would “all [be] picked by the Federalist Society.”

That pledge convinced many conservatives to support Trump despite their misgivings. This determination to support Trump despite his obvious flaws later became known by the catch phrase, “But Gorsuch,” referring to Neil Gorsuch, Trump’s first nominee to the Supreme Court. 

Whatever else Trump might do, these conservatives believed, the Court would be safely originalist. The core five-member conservative majority on the Court today — Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett — are all current or former members of the Federalist Society.

The group’s support of Trump in his first term paid off in other ways as well. Trump’s substantive policies of tax cuts and smaller government supported Federalist Society commitments. Plus, Trump in his first term largely obeyed the rule of law.

Trump did not really threaten constitutional democracy until he began to lie about the result of the 2020 Presidential election. Those lies led to the Jan.6 U.S. Capitol attack and all the other attempts by Trump to set aside a lawful election.

The Society and the president

The Federalist Society does not take partisan political positions, so there is no way to estimate the effect of Trump’s actions on his support within the organization. Some conservatives denounced Trump’s actions. Most simply kept quiet. Many strongly opposed the prosecutions and sanctions pursued against Trump and some of his followers that followed Jan. 6.

I know many members of the Federalist Society and I have the impression that a lot of them were hoping Trump would be defeated for the 2024 Republican Presidential nomination. When he became the nominee, however, the Federalist Society mostly fell into line.

This is not surprising, since whatever constitutional threat Trump might have represented, Democratic Party politicians had led a “lawfare” persecution against Trump that they felt violated fundamental legal norms.

But from a constitutional perspective, Trump’s second term has been nothing like his first. Federalist Society members must be appalled by Trump’s flagrant and constant constitutional abuses.

These include denying access to federal buildings and security clearances to law firms for providing entirely legal representation to persons and causes Trump dislikes, baselessly threatening Harvard’s tax-exempt status, ordering states to change their election laws, leading indiscriminate immigration sweeps, and, perhaps most galling, Trump’s delegation-run-amok-single-handed tariff regime.

More generally, Trump acts like a monarch, doing what he wants. He is a walking violation of the separation of powers the Society declares “central to our Constitution.” America today is in danger of succumbing to the very one-man rule the framers feared when creating the presidency.

The tragedy of the Federalist Society is not that its leadership and membership supported Trump in the 2024 election. Democrats also threatened constitutional values.

The tragedy is that, despite the enormous influence of the Federalist Society within the Republican Party, the organization has not raised its voice, collectively or individually, in defense of the Constitution since Trump assumed office. An open letter signed by hundreds of Federalist Society members condemning Trump Administration abuses would go a long way toward ending them.

Tragic silence

It is easy to understand why no such letter has circulated. We live in a polarized political environment in which we hesitate to give any ammunition to the other side. And besides, Trump has still pursued many policies that Federalist Society members applaud, such as government spending and personnel cuts. Anyway, isn’t it more prudent and effective to work behind the scenes, maintaining access and influence?

This is the siren call of tragedy.

Like Colonel Nicholson in the movie, the pursuit of honorable and important short-term goals has blinded the Federalist Society to the larger threat. The organization has remained mute while the very thing the framers feared threatens to come to pass. We all hope the organization finds its voice before it is too late.

Bruce Ledewitz is a professor of law at the Thomas R. Kline School of Law of Duquesne University. He writes every other Monday. The views expressed do not represent those of Duquesne University.