Trump’s Spat with the Federalist Society Signals a Heightened Threat to the Rule of Law
Donald Trump’s loyalty test for judges has reached new — and concerning — heights. As Trump prepares to appoint new judges, he’s made it clear that he expects loyalty to him over the Constitution.
If you need proof, just take a look at his recent spat with the Federalist Society (“FedSoc”) and its former court-packing head Leonard Leo.
FedSoc may try to bill itself as a mere debating club, but in reality, it is a far-reaching legal advocacy organization whose mission is to align the courts and rule of law with the political strategies and policies of the right. Membership has long served as a near-litmus test for conservative judges and attorneys. For example, of Trump’s 51 nominees to circuit courts during his first administration, 43 were current or former FedSoc members.
That’s why many gawked when Trump recently lashed out at the organization, claiming that it had given him “bad advice” on his previous judicial nominations. The tantrum followed a ruling against Trump’s tariffs, one of many blocking his unlawful executive overreaches, and was a candid admission of Trump’s expectation that his judges would simply always rule in his favor. Unfortunately for him and fortunately for the rest of us, even some very conservative judges can recognize when an authoritarian president is stepping too far outside the lines.
Trump also attacked Leonard Leo, who used to head FedSoc and has long been considered the architect of the conservative takeover of the courts. Trump called him “a real ‘sleazebag’” and a “bad person,” claiming that Leo “probably hates America, and obviously has his own separate ambitions.”
As always with Trump, he’s happy to align with anyone who helps him amass power and then dump them the first moment they become an inconvenience or threat to retaining that power. This squabble may seem like the kind of political theatre we’re used to from Trump, but coupled with other actions by his administration, it signals a new level of intentional attack on the rule of law.
Trump and his sycophants have repeatedly attacked judges who don’t rule their way, even threatening them with impeachment. Judges have responded with serious concerns for both their independence and even their safety. The administration’s attacks on law firms for litigation not aligned with its political interests are likewise an attempt to weed out legal resistance. Meanwhile, Republicans in Congress are considering multiple ways to gut the power of the judicial branch, whether by blocking judges from issuing universal injunctions entirely or making it financially impossible for most parties to obtain them.
The increasingly clear and blatant loyalty test for judicial nominees should trigger alarm bells. Conservative — or “originalist,” if you prefer the right’s euphemism for its judges — is no longer good enough for Trump. He wants judges who are loyal to him personally over the Constitution or the law. That crosses a new line from selecting judges who will cater to his policies on a partisan level to judges who will ensure he always wins, regardless of the outcome’s popularity on either side of the political spectrum and regardless of the law.
A perfect example is his nomination of Emil Bove to the U.S. Court of Appeals for the Third Circuit. Bove was Trump’s personal attorney in several of his criminal cases, including both the classified documents and election obstruction cases. Here is a would-be judge who proudly stood by Trump’s attacks on democracy and fought to help him get away with it. This year alone, working for Trump’s Department of Justice, Bove fired career attorneys who prosecuted January 6 cases, struck a corrupt deal with New York City Mayor Eric Adams to dismiss federal charges in exchange for cooperation on immigration enforcement efforts and threatened federal criminal prosecution against local officials who opposed Trump’s immigration policies.
He wants judges who are loyal to him personally over the Constitution or the law.
And on Tuesday we learned that, according to a Department of Justice whistleblower, Bove suggested that the department tell courts “f*** you” and simply ignore their orders while plowing ahead with Trump’s aggressive deportations.
This kind of blind loyalty to whatever Trump wants, whether it is legal or not, is the expectation we must now have for his future nominees, including judges and other officials across his administration. Only six months in, we know all too well that this is different than his first term and he is eager to exact revenge against dissenters and demand compliance with his agenda, including by deploying the military in response to peaceful protests and handcuffing senators or comptrollers who dare to question his illegal actions. He is only going to select those he can count on to be obedient to these whims.
Right now, our courts are one of the few fortifications defending against the administration’s abuses of power, and as it is, there are some Trump judges and justices allowing him to get away with atrocious acts — even if only temporarily. If we lose ground by allowing even more Trump loyalists on the bench, that could be the game for our democracy.
If our democracy survives this second Trump administration, these loyalist judges will be appointed for life. Given the administration’s clear record and intention to establish a presidency not beholden to the law, we can’t trust that these nominees will preserve the Constitution and the republic as we know it.
It’s worth noting that Leo responded to Trump by lavishing him with more praise while taking no credit (not even on FedSoc’s behalf) for Trump’s first judges. We know that neither Leo’s nor FedSoc’s motives — to “crush liberal dominance” — have changed. We dare not give them any benefit of the doubt that their judicial candidates will somehow be lesser evils. Indeed, they have their marching orders, and we should expect them to take up whatever loyalty pledge is required to placate Trump, reap their nominations and corrupt our democracy on his behalf. Trump seems to have no concerns or regrets that almost all of his new nominees still have significant FedSoc connections.
Trump has already moved on to other theatrical feuds, but the lesson from his swipe at the Federalist Society is not one we can forget. He expects his judges to protect him, not to uphold the Constitution for the rest of us. We should take him at his word and reject not just these judicial nominees, who as Trump’s picks cannot be trusted to be objective interpreters of the law, but also all the efforts to insulate Trump from the checks and balances that have defined our republic for nearly 250 years.
Rachel Rossi is the president of Alliance for Justice and Alliance for Justice Action Campaign, bringing decades of experience as a public defender, policymaker, and advocate for civil rights and access to justice. She most recently served as director of the Office for Access to Justice at the U.S. Department of Justice and previously as deputy associate attorney general, where she became the first-ever Anti-Hate Coordinator. A proud daughter of immigrants from the Dominican Republic and Greece, Rossi’s career — from the courtroom to Capitol Hill — reflects her unwavering commitment to equity, reform, and defending democracy.