Trump just threw one of his most powerful allies under the bus
On Thursday evening, President Donald Trump publicly split with the Federalist Society, the powerful conservative lawyers' group that he relied on to select judges in his first term. Thanks in no small part to Trump, a majority of the Supreme Court justices are associated with the Federalist Society, as are dozens or even hundreds of other federal judges.
But now, Trump apparently regrets his earlier partnership with the Society.
'I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations,' Trump posted on Truth Social. He blames his decision to ally with the Society on the fact that he was 'new to Washington' when he first became president, 'and it was suggested that I use The Federalist Society as a recommending source on Judges.' He also names Leonard Leo, the co-chair of the Society's board, a 'sleazebag' who 'probably hates America, and obviously has his own separate ambitions.'
It's a bold move by Trump, because the Federalist Society derives much of its power from the fact that so many of its members have lifetime appointments to the federal bench. Promising conservative lawyers want to join — and pay dues — to the Society because it was seen as a pipeline to power. And the fact that its members have been able to shape policy on everything from abortion to race to student loans made it the premier right-wing legal group.
That's not to say Trump will destroy the Society's grip on the judiciary. In fact, he may have inadvertently strengthened it. Older Federalist Society judges and justices may be less likely to retire under Trump now that they know that he's unlikely to rely on the Society to choose their replacement. And sitting Federalist Society judges and justices may view the Trump administration's legal arguments with greater skepticism.
Trump's breakup with the Federalist Society isn't particularly surprising. At a recent Federalist Society conference on executive power, many of the speakers denounced Trump's incompetence and warned that it would prevent conservatives from achieving lasting policy victories during this administration. Some argued that Trump's signature economic policy, his tariffs, are illegal.
And Trump is right that Leo, and by extension, the Federalist Society and its judges, have 'separate ambitions' that do not always align with Trump or the MAGA movement. While the Federalist Society certainly has plenty of members who are staunch MAGA loyalists, many of its judges still adhere to the more libertarian and less explicitly authoritarian approach that dominated the Republican Party before Trump took it over.
Speakers at the recent Federalist Society conference spoke openly about plans to diminish Trump's power and shift authority toward the judiciary. Nor did the Federalist Society's judges rally behind Trump's failed attempt to overturn former President Joe Biden's victory in the 2020 election. Some of them even actively pushed back – Trump-appointed Judge Stephanos Bibas's opinion rejecting one of Trump's attempts to overturn that election begins with the line 'free, fair elections are the lifeblood of our democracy,' and rejects Trump's claims due to a lack of 'specific allegations and then proof.'
In his Thursday night post announcing that he and Leo are never getting back together, Trump pointed to a recent decision by the US Court of International Trade, which struck down an array of Trump's second-term tariffs, as a triggering event. Notably, one of these three judges, Timothy Rief, is a Trump appointee.
So it appears that one of the most fruitful partnerships in the conservative legal movement's history is now over. This divorce is likely to diminish both Trump's power and that of the Society in the long run.
The Federalist Society is America's most powerful legal organization in large part because it has such a comprehensive network of right-leaning and right-wing lawyers. Top law students often join the Federalist Society because the Society can help place them in clerkships with some of the most prestigious judges. The Society's events give young lawyers a chance to network with senior members of their profession who can connect them with other hard-to-obtain job opportunities. And, because senior lawyers often have a decades-long relationship with the Society, the Society can easily vet them for ideological loyalty if they seek a political appointment such as a federal judgeship.
This network also means that the Federalist Society has historically provided a valuable service to Republican presidents. If a federal judicial vacancy arises in, say, Idaho, the president and his top advisers are unlikely to know which members of the Idaho bar are both highly skilled and ideologically committed to the GOP's goals. But the Federalist Society has both a student and a lawyers' chapter in Idaho. So it can identify highly qualified right-wing candidates for the bench and pass that information on to the White House.
Without access to this network, Trump is likely to struggle to identify nominees as quickly as he did in his first term, and there are already signs that he's relying on alternative networks to find his second term judges — a shift that may diminish the Society's influence in the long run, because lawyers hoping for a political appointment will no longer gain an advantage by joining it.
When Trump announced his first slate of second-term nominees in early May, for example, half of them were lawyers in GOP-controlled state attorney general's offices. These offices might provide Trump with a stream of loyal nominees in red states, but it is unclear how he will identify judicial candidates in blue states where elected officials are unlikely to fill their offices with lawyers sympathetic to the MAGA movement.
Trump's split with the Federalist Society may prove to be one of the most consequential legal developments of his second term.
The Federalist Society also provides right-of-center lawyers with a forum where they can debate their disagreements and often achieve consensus. Once such a consensus is reached, moreover, Federalist Society events help popularize that consensus among legal conservatives, while also communicating to ambitious young lawyers which policy positions they need to hold in order to secure the Society's aid when those lawyers seek political appointments.
This means that judges chosen by the Society tend to have uniform views on a wide range of legal questions, even if those views are unusual within the legal profession as a whole. The Federalist Society, for example, has long popularized a theory known as the 'unitary executive,' which would give the president full control over all federal agencies, even if Congress tried to give those agencies' leaders a degree of independence. This theory played a central role in the Republican justices' shocking decision in Trump v. United States (2024), which established that the president has broad authority to use his official powers to commit crimes.
If Trump stops drawing from the Federalist Society when he selects judges, in other words, his second-term nominees are likely to hold views that diverge from those of many sitting Republican judges, even if those nominees might broadly be described as 'conservative.' And that could set back the conservative cause.
Before the Federalist Society's founding, for example, President Richard Nixon picked four justices that he believed to be conservative. But three of them joined the Court's abortion rights decision in Roe v. Wade (1973), and Nixon-appointed Justice Lewis Powell wrote a seminal opinion in Regents of the University of California v. Bakke (1978), which kept affirmative action alive for several decades.
It's also possible that many sitting Federalist Society judges and justices will view Trump with greater skepticism now that he's no longer aligned with an organization that they closely identify with. Because the Federalist Society has been a central part of many lawyers' and judges' professional life for decades, these senior professionals often identify strongly with the Society and react negatively to perceived slights against it.
In 2020, for example, the US Judicial Conference Committee on Codes of Conduct withdrew a proposal to discourage federal judges from belonging to ideological bar associations like the Federalist Society after that proposal triggered widespread backlash among judges aligned with the Society. When it comes to Trump, many of the lawsuits challenging his tariffs are backed by conservative legal organizations that historically have aligned with the Federalist Society; his attacks on the Federalist Society could make such organizations more likely to challenge him.
Trump's split with the Federalist Society, in other words, may prove to be one of the most consequential legal developments of his second term. It is likely to make Republican judges less ideologically homogeneous, which increases the likelihood that any given panel of judges will vote against a conservative litigant. And it also means that many sitting judges will be less likely to retire under Trump, and more likely to view the Trump administration's legal arguments with skepticism.
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