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TRUMP IS HEADED TO WAR WITH THE FEDERALIST SOCIETY—AND IT’S GONNA
BE HUGE  
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Elie Mystal
June 3, 2025
The Nation
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_ The fight might between the president and the conservative old
guard might just be the biggest legal development of Trump’s second
term. _

Leonard Leo, former head of the Federalist Society, and Donald
Trump., Nordin Catic / Getty Images for The Cambridge Union; Andrew
Harnik / Getty Images

 

One of the keys to Donald Trump’s enduring popularity with the worst
people this country has to offer is that he often says mean things
about the people his supporters hate. Whether Trump _does_ anything
to those people, and whether his actions actually solve the problems
his supporters have with those people, is often a different matter.
But he certainly says nasty things about his enemies, and that is
apparently enough to keep his supporters clapping like seals.

Last week, for the first time in my life, I got to experience this
aspect of Trump’s appeal. On Truth Social, Trump said mean things
about one of _my_ enemies: Leonard Leo. And, truth be told, it was
glorious.

The event that seems to have set Trump off was that he lost his
tariff case
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front of the US Court of International Trade. The next day, the Court
of Appeals for the Federal Circuit stayed the decision pending further
argument, but Trump was evidently still pissed about it when Susie
Wiles told him he’d eaten enough of his dinner to have screen time
again. He wrote
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I was new to Washington, and it was suggested that I use The
Federalist Society as a recommending source on Judges. I did so,
openly and freely, but then realized that they were under the thumb of
a real “sleazebag” named Leonard Leo, a bad person who, in his own
way, probably hates America, and obviously has his own separate
ambitions.

Given Trump’s reliance on Leo and his judges ruling in his favor,
Trump’s public denouncement of Leo surprised a lot of people. But
not me, and hopefully not you.

As a reminder, Leo and the Federalist Society (which Leo functionally
ran until 2023, when 91-year-old industrialist Barre Seid gave him
$1.6 billion
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do whatever he wants) have controlled judicial nominations by
Republican presidents since at least 2005. That’s when the
Federalist Society led an uprising against George W. Bush’s second
Supreme Court nominee, Harriet Miers, scuttling her confirmation
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getting Bush to appoint Samuel Alito instead. Leo and his acolyte
White House counsel Don McGahn ran judicial nominations during
Trump’s first term and picked most, if not all, of Trump’s judges,
including Supreme Court Justices Neil Gorsuch, alleged attempted
rapist Brett Kavanaugh, and Amy Coney Barrett.

Everything awful that has been forced on us by the federal judiciary
over the past 20 years—from the loss of abortion rights to the
evisceration of voting rights to the installation of Trump himself as
a king immune from criminal prosecution—has been the direct result
of Leo and his influence over judicial nominations (with invaluable
assistance from former Senate majority leader Mitch McConnell, of
course). Indeed, the few “accomplishments” Trump can claim have
been brought to him by his Federalist Society judges.

But regular readers know
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there’s been a growing rift between Trump and the Federalist Society
since Trump’s reelection. I’ve been tracking it the way storm
chasers follow tornados: for “science,” but also for really cheap
thrills. So have others. _Above the Law_’s Joe Patrice noted
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Trump’s most recent judicial nominee—Emil Bove, whom he tapped to
join the Third Circuit—is a slap in the face to Trump’s FedSoc
handlers. Meanwhile, legal commentator and New York
congressional candidate [[link removed]] Mike
Sacks suggested
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Trump began to sour on the Federalist Society a while ago—probably
back in 2020, when FedSoc judges refused to endorse Trump’s various
legal arguments to overturn the election.

That said, Trump is not the only one firing shots in this emerging
war. Ian Millhiser has reported on the FedSoc’s growing
“ambivalence
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toward Trump, which is now regularly on display at its conferences and
dinner events.

It’s not hyperbolic to say that the public break between Trump and
Leo may be the biggest legal development of Trump’s second term.
Think of the Federalist Society like a Taco Bell, endlessly mixing
three or four basic ingredients into various tortillas or shells. You
can order a “burrito supreme” or a “crunch-wrap burrito” or
whatever makes you feel special, but at the end of the day you’re
getting the same fundamental foodstuff. It’s quick and it’s
standardized, so you can order the “Ninth Circuit Court of Appeals
burrito” in California and get basically the same thing as when you
order the “US Court of International Trade burrito” in New York.
Regardless of the packaging, these judges are made from the same
recipe: one-part rejection of the rights of women, Black people, and
LGBTQ people; one-part ignorance of the practical realities of the
modern world. Now add some bullets, sprinkle on transubstantiated
Jesus to taste, and you’ve made a FedSoc judge.

That brings us to the upside of this emerging rift: Trump, or anybody
else, can cook up the same judicial recipe, but it’s unlikely that
Trump and his team can mass produce Leo’s results.

Without the FedSoc Taco Bell, the pace of Trump’s judicial
nominations will slow. Trump made a record number of judicial
appointments in his first term (since narrowly outpaced by Biden), and
the only way he was able to do that was because Leo and the FedSoc had
already done all the hard work of standardizing the process of
developing conservative judges. Trump can reinvent the wheel and make
a handful of appointments based on the guest logs from Mar-a-Lago, but
finding 250 people who can be confirmed by the Senate and will
reliably agree with Trump on every one of his legal flights of fancy
is not a quick or easy process.

Perhaps more important, a rift with Leo makes it unlikely Trump will
have as many appointment opportunities as he did in his first term.
FedSoc judges like getting replaced by other FedSoc judges. If judges
considering retirement are uncertain about whom Trump will appoint,
they might not retire after all. That’s especially true of important
circuit-court judges and Supreme Court justices. I was _sure_ that
Sam Alito would retire at some point before the next election to give
Trump an opportunity to replace him with someone younger. Now, I’m
not as confident. If Alito isn’t convinced Trump will replace him
with Alito 2.0, he might hang around just a little while longer. The
same goes double for Clarence Thomas, who doesn’t really want to
retire anyway.

Lastly, if Trump is in open war with the FedSoc, then FedSoc judges
might feel a little more emboldened to strike down some of Trump’s
worst executive orders. In addition to the tariff case, Trump has lost
lower-court cases involving birthright citizenship and the mass
deportation of immigrants, even in front of FedSoc judges. While the
Supreme Court may yet have their king’s back, FedSoc judges as a
whole have been more resistant than Trump was told they would be, and
may continue to frustrate his agenda.

Unfortunately, that is about where the good news ends. Despite my
schadenfreude at Leo getting his face eaten by the unhinged leopard he
helped release, this is not a situation where the enemy of my enemy is
my friend. If Leo is not in charge of judicial nominations in this
administration, who is? I will bet all the money in my pocket that the
answer to that question is “a racist ghoul,” but not the racist
ghoul you’re probably thinking of. Stephen Miller only acts like
he’s a lawyer, but he has no formal legal training and doesn’t
really understand what judges do or how they do it. I believe the guy
who will be de facto responsible for judicial nominations going
forward is Mike Davis [[link removed]].

If you’ve heard of Mike Davis, it’s probably because of his viral
racist rants
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“violent” Black people. Davis is a former clerk for Neil Gorsuch
and a former staffer for Charles Grassley, back when Grassley ran the
Senate Judiciary Committee. He’s the founder and president of the
Article III Project, a group committed to getting conservative judges
confirmed that is even more right-wing than the Federalist Society.
Davis has been described
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New York Times_ as a “take-no-prisoners conservative eager to
challenge the left with hardball tactics.”

Davis greeted the news of the Trump/Leo fight with glee, saying that
Trump “will pick even more bold and fearless judges in his second
term.” He also went on Steve Bannon’s show
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slam Leo for “sitting on the sidelines” while Trump tried to
overturn the 2020 election.

Trump will still appoint plenty of Federalist Society judges. That’s
because all conservative judges are also Federalist Society judges;
such has been the power of that organization over the past two decades
that there is no such thing as a Republican judicial hopeful who
isn’t also a member of the Federalist Society. All squares are also
rhombuses.

But not all rhombuses are squares. With Davis’s influence, we can
expect Trump’s second term to be filled with “FedSoc judges”
whose primary loyalty is to Trump, not the Federalist Society. Davis
will find judges who will happily vote to let the Republican candidate
steal an election the candidate clearly lost. Moreover, I expect Davis
will find at least some judges who think that the 22nd Amendment,
which limits a president to two terms in office, is just a suggestion,
not a requirement. And should a Supreme Court justice retire or die
before 2028, you can best believe that their successor will believe in
the Great Replacement Theory and think that birthright citizenship
must be prohibited by any means necessary.

If there is one abiding maxim about the Trump era, it is this: It can
always get worse.

Still, the process for finding and confirming those
“somehow-even-worse” judges will be slower and more chaotic. There
will be more opportunities to resist and perhaps even defeat some of
these Davis picks. And other FedSoc judges might be convinced to hold
on to their positions for just a little bit longer.

The best hope here is that Trump, Davis, and whoever else is involved
going forward make picks so despicable and unqualified that even
Republican Senators get spooked. Either that, or Trump will start
auctioning off judicial appointments like he does ambassadorships
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_ELIE MYSTAL is The Nation’s justice correspondent and a columnist.
He is also an Alfred Knobler Fellow at the Type Media Center. He is
the author of two books: the New York Times bestseller Allow Me to
Retort: A Black Guy’s Guide to the Constitution
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Popular Laws That Are Ruining America, both published by The New
Press. You can subscribe to his Nation newsletter “Elie v.
U.S.” here [[link removed]]._

_Copyright c 2025 THE NATION. Reprinted with permission. May not be
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* Donald Trump
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* Leonard Leo
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* Federalist Society
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* Judiciary
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* Federal judges
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* Mike Davis
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