The Danger of Trump's Clash with the Conservative Legal Movement

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FOR NEARLY A DECADE, the conservative legal movement has endured a marriage of convenience with Donald J. Trump. The president has now unequivocally asked for a divorce.
The signs of trouble in this relationship were there from the beginning. The conservative legal movement owes its remarkable success to three things: principle, persuasion, and persistence. These are qualities Trump does not appreciate. His wins flow from other characteristics.
Over the years, they tried to make it work. Trump held up the core of his bargain—the nomination of traditional constitutionalist judges. He appointed men and women of generally high caliber, in the model of judges we might have expected from a President Rubio, Cruz, or Jeb Bush. That transformed judiciary led to many victories, including strengthened First and Second Amendments, a fatal blow to racial preferences, a historic turn against the administrative state, and the reversal of the conservative legal movement's great white whale—the jurisprudentially appalling Roe v. Wade.
But, over time, Trump's dalliances with illegality and his failure to live up to his oath of fidelity to the Constitution grew harder to ignore. His actions following the 2020 election, culminating in the events of January 6th, nearly ruptured the relationship. Yet somehow, with some work and wishful thinking, the parties moved past that unpleasantness and looked to 2025 with hope. At the jubilant post-election Federalist Society dinner in November 2024, one leader boasted from the podium that he had just gotten off the phone with the once and future president and had told him he was about to dine with thousands of his favorite lawyers.
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Yet soon, the trouble, which anyone outside the dysfunctional relationship could see coming, materialized. Again in power, Trump engaged in brazen corruption, enabled and promoted unfit characters to positions of public trust, broke faith with the rule of law, and recklessly flirted with constitutional crisis. Mocking the very notion of 'law,' Trump infamously tweeted: 'He who saves his Country does not violate any Law.' Much of the conservative legal movement closed its eyes and thought of the judges.
But if anybody in the conservative legal movement thought the toxic relationship could still survive all this bad behavior, the president has moved to end things. He has turned his back on the movement that enabled his rise and made possible his most lasting (constructive) legacy: the transformation of the federal judiciary. Conservatives hoping for more judges like those of his first term should prepare for disappointment. He's seeing other people.
The break came in two steps in late May. First, Trump nominated Emil Bove to the Third Circuit Court of Appeals—a figure known not for commitment to conservative jurisprudence but for loyalty to Trump, including his role in the politicization of the Justice Department. Then, on social media, Trump expressed regret for ever having listened to the Federalist Society and called Leonard Leo, one of its longtime leaders, 'a sleazebag' and 'a bad person' who 'probably hates America.'
IN THE MID-TWENTIETH CENTURY, progressives controlled the judiciary, the bar, and the legal academy. Conservatives struggled to push back. Eisenhower regretted appointing Brennan and Warren to the Supreme Court. Nixon campaigned against the Supreme Court and had an opportunity to change it with four vacancies in his time in office. Yet he struggled to find qualified candidates, saw multiple nominations fail spectacularly, and his successful nominations included Justice Blackmun, who would shortly author Roe v. Wade. Republicans had neither the arguments, nor the bench of talent, nor the political support network to reliably confirm justices cut from a different cloth.
In the 1970s, the conservative legal movement began to take shape. Over the half century that followed, it transformed legal culture and became a central player in the staffing of Republican administrations and a pipeline for judicial talent. By the time Donald Trump became president in 2017, it could plausibly claim to have played the decisive role in his victory, after which it partnered with him to help advance one of its primary goals: the transformation of the federal judiciary.
What explains this success? Principle, persuasion, and persistence.
Early conservative slogans favored in the Nixon era—like 'strict construction' or 'law and order'—lacked coherence. Over time, the movement developed intellectually robust doctrines—textualism and originalism. These insisted that judges interpret the law as written, based on its meaning at the time of enactment.
The fundamental principles have guided the conservative legal movement—indeed, adherence to them defines what constitutes that movement. Contrary to popular perception, the movement is not monolithic. It includes a multitude of institutions, both academic and litigation centers. The Federalist Society, founded in 1982, is among the most prominent institutions of the movement, but it includes many members with diverse perspectives. It's a well-worn observation that the Federalist Society is a 'they, not an it.'
Members of the conservative legal movement have differed in politics and law. They might describe themselves as conservative or libertarian, Burkean or Hayekian. They continue to have debates about how to apply originalism, whether courts should exhibit 'restraint' or 'engagement,' about whether and to what degree the courts should defer to legislatures, about the legitimacy of the administrative state, and more. The center of gravity in the community on some of these questions has shifted over time.
Members of the conservative legal movement remained united, though, in the belief that law matters, that the law is knowable, and that the law serves as an important constraint on judges as well as on the other branches. These are the principles to which it held and the constancy with which it held them throughout changing circumstances gave them force and gave the movement coherence.
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To be sure, some individuals were drawn to the cause with partisan or policy motivations. And it cannot be denied that the correlation of conservative theory with some conservative policy ends (for example, restricting abortion, protecting gun rights, or banning affirmative action) supercharged the movement. But the claim of the critics on the left that the legal principles merely cloaked a pursuit of a particular agenda never held, either among the legal theorists who debated the fine points of originalism or even among the ranks of the lawyers who staffed Republican administrations and congressional offices.
Ideas, as every young conservative will tell you, have consequences. But not without persuasion. Conservative lawyers, in particular, understood that persuasion is not merely a political tactic—it is a civic duty. Ours is a system built on consent, not coercion; on the give-and-take of argument, not the imposition of will.
A commitment to persuasion lay at the heart of the conservative legal movement for decades. It could be seen at Federalist Society events featuring panels showcasing diverse views and in signature debates between legal luminaries, right and left. But, in a genuine republic, the law cannot be left merely to the lawyers, and the conservative legal movement worked hard to convince a popular audience. Edwin Meese, President Reagan's attorney general, championed the cause of originalism. Justice Antonin Scalia famously traveled widely giving speeches and debating before general audiences and giving interviews to popular media. The core ideas of originalism became broadly accepted by Republican-leaning voters and, soon, even Supreme Court nominees of Democratic presidents seemed to embrace them in their confirmation hearings.
Lasting change in America requires one further element: persistence. Our Framers gave us a constitutional system where even a decisive electoral triumph does not yield transformation. A political intellectual movement must stay true to its course over successive administrations, through successes and setbacks. And the conservative legal movement saw its share of setbacks as it saw close defeats on cases ranging from abortion, affirmative action, property rights, same-sex marriage, and more.
But despite these defeats, the conservative legal movement stayed the course. It did not succumb to the temptations of jurisdiction-stripping, court packing, or judicial impeachments. It stuck to principle. It kept up the work of persuasion, and with persistence, it prevailed, at least as far as its project to transform the judiciary goes. Leonard Leo, in response to Trump's attacks, stated—correctly, from a conservative and originalist perspective—that 'the Federal Judiciary is better than it's ever been in modern history.'
That doesn't mean the judiciary has been wholly remade; even today's conservative Supreme Court can deliver opinions no originalist could love. But by any measure, the conservative legal movement has had remarkable success.
Now Trump threatens to burn it all down.
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EVEN TRUMP CRITICS ON THE RIGHT must acknowledge that we arrived at this point, in part, through the willingness of the conservative legal movement to work closely with a president who has never had much fondness for conservatism or the law. Yet politics demands a measure of practicality and prudence. The Democratic party had long ago rejected originalism and limited-government constitutionalism. For the conservative legal movement, the GOP remained the only viable path for its political project. Not long before Donald Trump emerged as the presumptive Republican nominee in 2016, Justice Scalia had passed away; a vacancy remained on the Court, and the remaining justices were evenly divided on key questions. The Court hung in the balance like never before.
The conservative legal movement made a deal with the GOP nominee. He pledged to nominate originalist jurists, including by taking the unprecedented step of publishing a list of prospective options for the Supreme Court. In exchange, much of the conservative legal movement supported his candidacy. Following his surprise election, many seasoned veterans of the conservative legal movement staffed his administration and soon worked productively with others on the outside to deliver on Trump's pledge.
The success of the judicial project, however, came at a deep civic cost. The conservative legal movement's fixation on the judiciary led many of its members to ignore (or worse, excuse) the degradation of the other two branches of government and damage to constitutional norms and values. While there were many notable exceptions, much of the movement, particularly in circles closest to power, held their tongues. A community built on principles became increasingly transactional, and Trump learned that he could get away with quite a lot of constitutional arson without losing the support of self-described constitutional conservatives.
America is a two-party system. Many interest groups will find that one party seems implacably opposed to their cause and, naturally, fall into an alliance with the other. But the alliance must serve known ends, and the interest group must retain some leverage. Legal conservatives must remain the constitutional conscience of the GOP, not merely captives. Trump found that he could count on many of them to be the latter, so long as he kept delivering judges.
Reasonable conservatives can disagree whether the bargain was ever worth it. (I have grave doubts.) But now that Trump has threatened to walk away from his prior commitment to nominating conservative judges, what remains for the conservative legal movement in the alliance? It's time for conservatives, even those who support the president, to rebel. It's time for them to do what they have done best: stand on principle, persuade, and persist.
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When George W. Bush went around the conservative legal movement and nominated his White House counsel to the Supreme Court, it divided the right. But the nomination of Harriet Miers ultimately failed because a growing chorus of conservative legal thinkers and their allies in the Senate asked hard questions and spoke important truths. They especially recoiled at the argument from the White House that they should support Miers because she had the president's confidence and she would vote the 'correct' way. As much as they may have admired President Bush, conservative lawyers were not about to throw away their leverage or their values to support whomever the president wished to see on the bench. They insisted that Republican presidents appoint principled legal conservatives, not presidential lackeys or outcome-driven jurists. They must continue to insist that now.
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WHATEVER ONE THINKS ABOUT the relationship between Trump and the conservative legal movement to date, the breach portends ill not only for conservatives, but for all Americans. Even MAGA voters will likely soon have reasons to regret it.
The first Trump administration relied on stalwarts of the conservative legal movement in the White House, the Justice Department, and at many key agencies. Their counsel helped restrain the president's worst impulses and enabled his more lasting accomplishments. Trump 2.0, instead, drips with contempt for the law. The president has removed internal safeguards and watchdogs, replaced seasoned lawyers with loyalists, and put MAGA movement hacks in essential positions. Ed Martin, briefly an interim U.S. attorney and now the pardon attorney in the Department of Justice, is but one example of a disturbingly common type. An administration acting without the guidance of serious lawyers will prove more chaotic, more likely to abuse the rights of citizens, and less likely to accomplish meaningful positive reforms. We have already seen some of this.
But the bigger, lasting damage could come to the judiciary. As every middle schooler learns, our system rests on checks and balances upon which our liberties depend. Each branch checks the others. We do not have the option of stopping an overreaching president with a vote of no confidence or a recall election. We count on Congress and the judiciary to perform their constitutional roles. With a supine Congress, the duty to hold the president accountable to the law increasingly falls to the courts.
Checked by judges, including his appointees, who uphold the law rather than follow presidential whim, the president and his allies have grown irate. They've deployed incendiary rhetoric, pushed for impeachment, and mused about suspending the writ of habeas corpus. All this amounts to a sustained campaign against the authority and legitimacy of the courts. The judges, to date, have responded with courage and firmness. In breaking with the conservative legal movement, the president must hope to find nominees made of more pliable stuff, more loyal to him personally.
Or, instead of weak judges, the president might find fighters—fighters committed to advancing his agenda from the bench. For years, a small but growing band of right-wing academics and agitators has called for a different type of judicial nominee. No longer should the right be satisfied, they have argued, with a commitment to the law and neutral principles in judging. Instead, they have hoped for a future where Republican presidents would install on the bench loyalists and fighters for their view of the good. This is not merely a more aggressive posture than that taken by the traditional conservative legal movement; it is a complete inversion of all that it held dear. Constitutionalists should take little comfort from knowing that legislating from the bench points in a rightward direction.
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Other dangers lurk in abandoning the conservative legal movement's talent pipeline. For one, it has produced remarkably high-quality judges, as it did empirically in Trump's first term, despite the characterization of critics. A Trump appointment process that cuts out the conservative legal movement likely will name less-qualified candidates, from which all litigants will suffer. Trump's recent decision to fully end the American Bar Association's (deeply flawed) review of judicial nominees will further enable lower-quality nominations.
Conservatives should also worry about a return to nominations based on patronage, political relationships, personal loyalty, or objective qualifications absent clear jurisprudential commitments. These approaches to judicial nominations yielded jurists like Warren, Blackmun, and Souter. Who knows what surprises a lawyer who happens to enjoy the favor of Trump at the moment might bring to the bench?
In cutting out the conservative legal movement from the process of judicial selection, the Trump administration would also shift the gravity of the nomination and confirmation process toward the White House and away from the Senate. Several process changes in the Senate have weakened the hand of senators in influencing nominations, but historically, a collaborative process between the branches often yielded higher-quality nominees possessing an appropriate judicial temperament. On the Republican side, the conservative legal movement fostered a dialogue between presidents and senators based on shared principles.
Given Trump's well-known gift for self-inflicted wounds, it shouldn't surprise that his decision to sideline the conservative legal movement in judicial nominations also undermines his goals. Judges tend to retire when they have the confidence that the president will replace them with nominees of whom they would approve. Conservative judges will no longer have that confidence and may defer retiring or taking senior status as a result, giving him far less of a chance to shape the judiciary this term than he otherwise would.
Furthermore, even if one agreed that a turn toward a more outcome-oriented right-wing judiciary was desirable, it would be a generational project, as the traditional conservative legal movement has seen. And without the principle, persuasion, and persistence modeled by the conservative legal movement, its odds of success are long. Furthermore, the type of sharp-elbowed 'fighter' MAGA wants on the bench would only complicate that project by repelling rather than persuading judges whose votes they need to prevail on multi-judge panels. Populist commentators imagine that Federalist Society judges 'make nice with the left, get invited to the right conferences, and write elegant dissents.' In reality, traditional conservatives persuade their colleagues and increasingly write majority opinions. Our new MAGA-warriors in robes will be the ones writing dissents, but with more anger than eloquence.
Some commentators have suggested that Trump's rejection of the conservative legal movement will have little impact on nominations because he will have nowhere else to look for judicial candidates than Federalist Society circles. This is wishful thinking for two reasons. First, if the president's chief concern in judicial selection is a loyal MAGA fighter, there are plenty of them to be found. There are over a million lawyers in America, many are Republicans. The president can turn to the ranks of the Republican National Lawyers Association and look for lawyers who have worked on campaigns or run for office with MAGA bona fides. The conservative legal movement performed an important function in recommending individuals with established jurisprudential commitments. Finding such people takes work and judgment, but if you want hacks, you can swing a gavel and hit them.
The second reason this is cold comfort is that today's Federalist Society membership is not what it was twenty years ago. Belonging in the Federalist Society once clearly signified a deep interest in and commitment to a certain jurisprudential approach; if anything, membership might hurt one's career in some circles. As the society has grown and become associated with power, it has become attractive to ambitious lawyers more generally. Long-established leaders of the conservative legal movement know very well who among the ranks has a serious commitment to sound jurisprudence. But if the president has hostility to the core of the conservative legal movement, and to its most prominent leaders, he can certainly find pliant tools who can claim Federalist Society membership.
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THE NOMINATION OF EMIL BOVE to the Third Circuit presents the first test case of a Trump presidency divorced from the conservative legal movement. A self-respecting Senate would reject this nomination on basic character and competence grounds. Bove's involvement in the deeply corrupt Eric Adams affair alone disqualifies him. But this nomination is not just about Bove. It is about how the second Trump term will approach judicial nominations, including to the Supreme Court. If the Senate confirms Bove, it will send a clear signal that the president has the freedom to depart from the model of judges long favored by the conservative legal movement. We can count on him to take that freedom and run with it for other vacancies, including for the Supreme Court.
The president himself announced Bove in partisan terms, promising his followers on Truth Social that Bove 'will end the Weaponization of Justice, restore the Rule of Law, and do anything else that is necessary to, MAKE AMERICA GREAT AGAIN. Emil Bove will never let you down!' Outside commentators who have long rejected principled legal conservatism applauded and suggested Bove would be the new model for Trump judicial nominees, those who are committed 'warriors' who understand 'the fight for our country is existential.'
The Bove nomination is an existential fight—for the conservative legal movement. If the conservative legal movement and its allies in the Senate rally to defeat this nomination as they did the Miers nomination twenty years ago, they will prove their commitment to principle and ensure their relevance going forward. They may get invited to fewer parties at the White House, but if legal conservatives stand firm now, they will remain a force to be reckoned with, for this administration and those to come.
If, instead, the conservative legal movement accepts this nomination, it will surrender any leverage and influence it has. At the very least, it will lose its purpose in the political arena. Perhaps it will fade into obscurity, or return to its roots as primarily a debating society for constitutional nerds and academics.
There's another, darker possibility. In surrendering to and accepting the Bove nomination, the conservative legal movement could send the message that the rising band of illiberal right-wingers and polemical pugilists have a place in its tent, alongside the Burkeans and Hayekians. In such an eventuality, the movement devoted to law and truth would legitimize those who reject it. In blessing the heretics of the 'post-constitutional' right, the movement will have lost its purpose. And its soul.
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Gregg Nunziata is the executive director of the Society for the Rule of Law. He is a veteran of the conservative legal movement and a former chief nominations counsel to the Senate Judiciary Committee.