Trump Should Thank the Federalist Society

The second Trump administration has sustained more nationwide injunctions in its first four months than the Biden administration did in four years—and more than all presidencies combined going back at least to John F. Kennedy. (See “Trump v. The Courts.”)

Though the Supreme Court allowed a good share of President Trump’s challenged executive orders to take effect, these judicial frustrations have prompted fierce criticism from the president, vice president, and many high-ranking officials, including calls for impeachment. After the U.S. Court of International Trade blocked his tariffs, Trump pointed his Truth Social finger at Leonard Leo and the Federalist Society for allegedly misleading him on judicial appointments.

Never mind that nearly all the judges who have enjoined the administration were appointed by Democratic presidents. Or that the CIT panel’s sole Trump appointee, far from being a Federalist Society creature, is a lifelong Democrat—that court’s governing statute requires partisan balance—who had previously been a senior adviser to Robert Lighthizer, Trump’s arch-protectionist first-term trade representative.

Indeed, the great irony is that, despite the president’s protestations against the federal bench, the most enduring impact remaining from his first term is his transformation of the judiciary—with the help of the Federalist Society. As my old Mississippi friend Russ Latino posted on X in response to Trump’s anti-Leo jeremiad, “Federalist Society judges” have overturned Roe v. Wade after nearly 50 years; eliminated racial preferences in college admissions; restored Second Amendment rights; defended religious liberty; ended judicial deference to bureaucrats; blocked executive student loan forgiveness; and recognized presidential immunity, defusing some of the lawfare campaign against then-candidate Trump.

Conservatives and populists alike pan Trump’s Supreme Court nominees for assorted apostasies, but none of the abovementioned jurisprudential earthquakes could have happened without Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. If critics want more judges like Clarence Thomas and Samuel Alito, Federalist Society stalwarts will take that deal. And to the extent the second Trump administration wants to eliminate waste and streamline government, nobody was more committed to “deconstructing the administrative state” than the actual architect of Trump’s first-term judicial nominations, former White House counsel Donald McGahn.

MAGA partisans get excited about nontraditional Cabinet and sub-Cabinet appointments—though Trump II is running remarkably slow on executive branch confirmations—but a president’s most lasting impact is on the judiciary. While political appointments expire at the end of a president’s term, judges long outlast any presidency. Legislative victories are hard-won, regulations can be rescinded, and executive orders can be reversed. But judicial appointments are for life; those black-robed arbiters continue shaping our world long after the president who appointed them has departed. Justice Antonin Scalia served for nearly 30 years, carrying President Ronald Reagan’s legal-policy agenda well into the twenty-first century.

That goes just as much or more for the lower courts, which decide some 50,000 cases per year against the Supreme Court’s 60 or so. An important ruling on nonprofit-donor disclosures was made not long ago by a district judge appointed by Lyndon Johnson. When I talk with law students, I might as well be referencing Andrew Johnson. Talk about being ruled by a dead hand!

Every four-year term, the president appoints about a fifth of the judiciary—and often flips the partisan makeup of circuit courts. When President Barack Obama took office, for example, only one of the 13 federal circuit courts had a Democratic-appointed majority; when he left, nine did. Trump I partly reversed that, flipping back three circuits. With the help of Senate Majority Leader Mitch McConnell, Trump appointed 54 circuit judges—including 19 to seats previously held by Democratic appointees—compared with Obama’s 55 across two terms. President Joseph Biden appointed one more judge in total than Trump, but he didn’t have the same impact because only 45 were circuit judges, and only five of those were in seats vacated by Republican appointees.

Biden took another action that will limit his successor’s opportunities to remake the judiciary: vetoing the JUDGES Act, which passed unanimously in the Senate and gained a bipartisan majority of the House. That bill would have added 66 new district judgeships. The last time Congress substantially increased the number of federal judges was under George H. W. Bush in 1990. Since then, court filings have increased 30 percent, as have backlogs, including on the criminal docket. Democrats apparently got cold feet after the election, even though the new judgeships would’ve been staggered over 12 years (three presidential terms).

Even if Congress repasses the JUDGES Act, the second Trump term won’t have as much of an impact on the judiciary because of the lack of vacancies. On Inauguration Day, only five circuit judges had taken or announced that they would take senior status—one of whom withdrew his retirement in defiance of judicial norms—plus 13 Democratic-appointed and 25 Republican-appointed judges eligible to take senior status. Another dozen or so Democratic appointees will become eligible before the next election, but they’re unlikely to retire. Trump will get a chance to replace some older Republican-appointed judges with younger ones, but he’s unlikely to flip any circuits. Curiously, the best prospect is the historically liberal Ninth Circuit, which now has a 16–13 Democratic–Republican appointee split, with three Democrat appointees senior-eligible and another one becoming eligible this September.

But will Trump effect a difference of kind, if not degree? If establishmentarian originalism—until recently a contradiction in terms—is on the outs, what will replace it? As of this writing, rumors of the Federalist Society’s demise are greatly exaggerated. Of Trump II’s first dozen nominations, only Third Circuit nominee Emil Bove seemed a bit unusual. Yet Bove graduated from Georgetown Law, clerked for conservative district and circuit judges, worked at a prestigious New York law firm, and served as an assistant U.S. attorney.

These are all excellent qualifications. The only reason his selection has raised eyebrows is that he was a tenacious member of Trump’s legal defense team and was involved as acting deputy attorney general in the controversial dismissal of charges against New York City mayor Eric Adams. Perhaps Bove’s experience and personal style are better suited to being a trial judge, but that can be said about plenty of appellate judges. Essentially, Trump picked a credentialed loyalist over other credentialed candidates.

As for the Supreme Court, Justice Thomas is 77 and Justice Alito is 75, but both are at the height of their influence and neither seems ready to retire. To the extent the justices consider politics, Republicans will probably hold the Senate in 2026, so their decisions will depend on how likely they think the GOP is to hold both the White House and Senate past 2028. That could set up another election-year confirmation battle, as Thomas almost certainly wants to serve through May 2028, when he’d become the all-time longest-serving justice.

While we can debate the merits of any particular ruling, the judiciary’s composition is indisputably better from the perspective of those in the president’s electoral coalition than it was a decade ago. Trump will incrementally build on that legacy, but chances for further inroads against the progressive elite will have to wait until the next presidential term.

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