Why Trump's attack on the conservative legal movement is a big deal
With Donald Trump's rhetoric, it's often difficult to separate the wheat from the chaff, the statements-of-intent from the just-venting, and the 'literal' from the merely 'serious.'
His social media missive Thursday night suddenly attacking the conservative legal movement should probably be put in the former categories.
It could be one of the most significant moments in Trump's long-running attempt to consolidate power – and sideline both Congress and the courts – in his second term.
Republican- and even Trump-appointed judges have increasingly formed something of a bulwark against Trump's power grabs. And the president has (at least for now) declared war on them, too.
In sum: Trump could be trying to bulldoze one of the biggest remaining impediments to his quest for unchecked power.
His Truth Social post ran more than 500 words. And it was a lot. But the crux of it was his decision to attack former Federalist Society head Leonard Leo.
Leo is an architect of not just the conservative legal movement but also many of Trump's judicial picks in his first term. One study found 80% of Trump's appeals-court judges were tied to the Federalist Society, as were all three of his Supreme Court picks.
Trump called Leo a 'sleazebag' – in quotation marks – and 'a bad person who, in his own way, probably hates America.' He said Leo and the Federalist Society gave him bad advice on the judges he picked.
And perhaps most notably, he posited that maybe Leo was part of some kind of conspiracy.
It's all very suggestive.
'He openly brags how he controls Judges, and even Justices of the United States Supreme Court,' Trump said, before adding: 'I hope that is not so, and don't believe it is!'
Trump isn't saying this, but he's saying it.
This, of course, doesn't come out of nowhere. While the White House has frequently attacked judges who rule against Trump's actions as 'radical' leftists, an increasing number of the rulings against Trump have come from judges appointed by Republicans and in, in some cases, judges appointed by Trump
The ruling the president was responding to in his Thursday night post came from a three-judge federal trade panel, which includes a Trump-appointed judge, that struck down many of his most significant tariffs (an appeals court later stayed that decision). Earlier this week, another Trump-appointed judge temporarily halted the administration's efforts to block congestion pricing in New York City.
And there's plenty more where that came from, from both Republican-appointed judges and Trump-appointed ones. Many of the adverse rulings pertain to Trump's rapid and legally dubious deportation efforts.
A study earlier in Trump's second term from CNN Supreme Court analyst and Georgetown University Law Center professor Stephen Vladeck made clear it wasn't just 'leftist' judges who were standing up to Trump and issuing injunctions the White House has frequently derided; when Trump's actions came before Republican-appointed judges, they too were issuing injunctions at a remarkable 45% clip.
All of which undermines the White House's oft-invoked claims that this is something of a 'judicial coup' engineered by a bunch of liberal judges. If Republican- and even Trump-appointed judges are doing it, too, that suggests this is really about Trump overstepping, not the judges.
So perhaps recognizing the growing problems with that talking point, Trump has decided to include Republican appointees and even judges he himself picked in the grand conspiracy of usurpers.
To be clear, there is no real evidence of any such conspiracy.
Leo and the Federalist Society are surely formidable figures in American politics – ones whose goals have often overlapped with Trump and created a symbiosis. Trump and other top Republicans have hailed their successful effort to steer the American judiciary to the right during his first term, most notably in the now-6-3-majority Supreme Court. Some of that was happenstance – getting vacancies at the right time – but some of it was the result of a rather bare-knuckle and very political approach to recasting the judiciary. (See: Then-Senate GOP leader Mitch McConnell not even giving Barack Obama's Supreme Court nominee Merrick Garland a hearing in 2016).
But a more logical explanation for the current clash between Trump and these GOP- and Trump-appointed judges is a lot simpler than these judges being under Leo's thumb.
These are judges, after all, who built their careers in a different era and corner of the conservative movement. They're generally more traditional establishment conservatives – the kind that used to have more of a foothold in federal politics but have steadily headed for the exits or changed their ways – rather than the brand of Trump loyalists who have increasingly taken over the party. They also have lifetime appointments, which insulates them from the political winds of the day.
So where does this leave us?
White House deputy chief of staff Stephen Miller told CNN's Pamela Brown on Friday that the White House will not use the Federalist Society to make judicial picks moving forward.
Still, it remains to be seen how much Trump truly presses forward with attacking Leo, the Federalist Society and Republican-appointed judges. Sometimes these moments pass, and Trump makes amends with people he said such awful things about.
His attacks here are also a fraught effort, given how much overlap there is between even the Trump-era Republican Party and the Federalist Society. Perhaps Trump views this as a momentary warning flare to Republican-appointed judges, in hopes that they at least feel the pressure.
But criticizing them is one thing; suggesting they are beholden to a secret puppet-master who hates America is quite another.
And Trump appears motivated to keep it up. Given the makeup of our courts, many of these judges represent pivotal votes for or against Trump's agenda, most notably in the Supreme Court. If these judges keep standing in his way – which wouldn't be surprising, given how brazen many of Trump's moves are – he needs to somehow explain why even seeming ideological allies would do that.
And to the extent Trump does marshal his base against even these conservative judges, it's not difficult to see that inching us closer to a truly ugly constitutional clash between the administration and the courts. The administration has already flirted with outright ignoring court orders, which would open up a Pandora's box for our democracy.
It might be an unavoidable conflict at this point, and Trump on Thursday sent his first major signal that he's leaning into it.
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