Trump's Attack on the Federalist Society Is a Bad Omen for Originalism
The MAGA loyalty that Trump demands is anathema to everything that originalism is supposed to be about.
President Donald Trump remade the Republican Party in his own MAGA image. Will he now do the same to the conservative legal movement?
During his first term, Trump benefited immeasurably from his association with Leonard Leo, the former Federalist Society official whose advice on judicial nominations helped Trump to transform the U.S. Supreme Court into a conservative legal juggernaut that eliminated the constitutional right to abortion, overturned affirmative action in higher education, and expanded the right to keep and bear arms. Such rulings will likely be remembered as Trump's most far-reaching accomplishments as president.
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Yet now, Trump is denouncing both the Federalist Society in general and Leo in particular. "I was new to Washington, and it was suggested that I use the Federalist Society as a recommending source on judges," Trump wrote last week. "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." Trump added: "I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!"
By "bad advice," Trump was referring to the fact that a number of Trump-appointed judges have ruled against Trump in his second term. I think it is safe to say that the only "good" judge in Trump's view is a judge who consistently rules in Trump's favor, not a judge who prioritizes the Constitution and the rule of law.
In fact, Trump basically announced that self-serving view of the judicial role with his recent nomination of his former criminal defense lawyer Emil Bove to fill a vacancy on the U.S. Court of Appeals for the 3rd Circuit. Bove will "do anything else that is necessary to, MAKE AMERICA GREAT AGAIN," Trump declared. "Emil Bove will never let you down!" To say the least, Bove's confirmation hearings before the Senate Judiciary Committee should be a colorful affair.
In its modern form, the conservative legal movement is an unsteady coalition whose members range from neocons to social conservatives to libertarians. The one thing that has somewhat united these disparate factions—aside from their shared involvement with the Federalist Society—is their shared affinity for originalism, which is the idea that judicial decision-making should be guided by the original meaning of the Constitution.
Not every self-professed originalist practices what he preaches, of course, and well-meaning originalists do disagree with each other on various issues. Still, the conservative legal movement's general embrace of originalism has been plain to see for many years.
But Trump never was and never will be an originalist. Trump only followed the advice of Federalist Society originalists because it suited his political purposes. The MAGA loyalty that Trump now demands from the judiciary is anathema to everything that originalism is supposed to be about.
So, the big question going forward is whether the conservative legal movement has the backbone to stand up against Trump's open assault on what it claims to stand for.
There are clearly some libertarian lawyers out there with backbone to spare. Indeed, those libertarians have already scored a significant win for originalism over Trump by clawing back the president's unconstitutional trade policy.
But what about the conservative legal movement's other factions? How many conservative legal eagles will be dropping their principles in the hopes of currying Trump's favor? How many fair-weather originalists are about to emerge? How many right-wing living constitutionalists will Trump create?
If the conservative legal movement follows the same path as the Republican Party, the prospects for originalism are not promising. But we'll see.
