Last Thursday night, President Donald Trump turned on one of his most important allies.
A day after a three-judge panel from the U.S. Court of International Trade, which included a judge he appointed in his first term, rejected his use of the International Emergency Economic Powers Act of 1977 to grant him expansive tariff authority, Trump posted a rambling screed on Truth Social condemning the judiciary.
He posted his rant despite that the court’s decision was almost immediately stayed by a court of appeals while it considers the administration’s arguments. Even so, the initial ruling was too much for Trump; he had to unleash.
That’s not new. He’s been condemning judges who rule against him since before he first became president. This time, however, he went after Leonard Leo and the Federalist Society. The Federalist Society is easily the largest and most influential organization of conservative lawyers in the country (I was a member in law school), and Leo is long one of its key leaders.
Trump declared himself “so disappointed” in the Federalist Society because of its “bad advice” on judicial nominations. But he reserved his real venom for Leo, calling him a “sleazebag” and a “bad person who, in his own way, probably hates America.”
An image of former President James Madison is seen behind Leonard Leo, as he speaks at the National Lawyers Convention in Washington, in this Nov. 16, 2017 file photo. (AP Photo/Sait Serkan Gurbuz, file)
Leo helped Trump choose conservative lawyers and judges for both the judiciary and his administration. Trump’s decision in his first run for president to publish a Supreme Court short list stocked with leading lights of the Federalist Society helped him win over skeptical conservatives in 2016.
But there was a problem. The Federalist Society never capitulated to Trump. It’s a decentralized group, and its members are stubbornly independent. I’ve spoken to dozens of Federalist Society student groups, and they can vary wildly from school to school. One chapter can be reasonably Trump-friendly (but never, in my experience, fully MAGA), while another is mainly Never Trump.
For every John Eastman — a Federalist Society luminary who was prosecuted and suspended from practicing law in California after he helped Trump try to steal the 2020 election — there are multiple Federalist Society judges and lawyers who’ve ruled against him or resisted him in other ways.
The examples by now are almost too numerous to count. During his first term, Trump had a worse record at the Supreme Court — which had a Republican-nominated majority — than any previous modern president. When he challenged the outcome of the 2020 election, Federalist Society judges ruled against him time and again.
During Joe Biden’s term, the Supreme Court rejected several MAGA legal arguments, and during his second term so far, Trump is faring very poorly in federal court. According to an analysis by a political scientist at Stanford, Adam Bonica, as of May, Republican-appointed district judges ruled against Trump 72% of the time. That number is remarkably close to the 80% rate of losses before Democratic-appointed judges.
And the Supreme Court seems no more hospitable to Trump in his second term. It’s already unanimously ruled that deportees under the Alien Enemies Act are entitled to due process before deportation, it’s upheld a district court order requiring the Trump administration to facilitate Kilmar Abrego Garcia’s return, and recently it ruled 7-2 against the administration in still another Alien Enemies Act case, holding that the administration was still not providing sufficient due process to deportees.
Trump hasn’t always lost, of course. He won important rulings at the Supreme Court that expanded presidential immunity and kept him on the ballot in 2024, but there is still an immense difference between judicial conservatives and, say, congressional Republicans. Most judges have a spine. Most members of Congress do not.
Another way of putting it is that when there is a conflict between conservative legal principles and Trump’s demands, conservative judges almost always adhere to their principles. Members of Congress do not.
And don’t think for a moment that it’s a Republican member of Congress’ job to simply yield to Trump. Constitutionally, Congress is a superior branch of government to the presidency, and it is explicitly designed to check the president. As James Madison wrote in Federalist No. 51, “Ambition must be made to counteract ambition.”
Trump is baffled. At the beginning of his Truth rant, he refers back to the Court of International Trade and asks: “Where do these initial three Judges come from? How is it possible for them to have potentially done such damage to the United States of America? Is it purely a hatred of ‘TRUMP?’ What other reason could it be?”
Trump and I have something in common. We’ve both been thinking about why the judiciary has held firm when many other American institutions (especially conservative institutions) have collapsed. Why have a vast majority of conservative judges remained faithful to their legal philosophies when we’ve watched a vast majority of Republicans twist themselves into pretzels celebrating Trump for practices and policies they’d condemn in any other person or politician?
I come from the conservative legal movement, I have friends throughout the conservative legal movement (including many Trump-appointed judges), and I think I know the answer, or at least part of it.
The immense pressure that Trump puts on his perceived rivals and opponents exposes our core motivations, and the core motivations of federal judges are very different from the core motivations of members of Congress. Think of it as the difference between seeking the judgment of history over the judgment of the electorate, and to the extent that you seek approval, you place a higher priority on the respect of your peers than the applause of the crowd.
If you ask judges or members of Congress why they do what they do, you’ll likely get similar answers: They feel called to public service. But how do they measure their success? While politicians might respect the idea of the noble loser in theory, in practice that is not the path they take.
It’s become easy for politicians to rationalize their compliance. How many one-term senators or short-term members of the House have made a difference in American history? they ask. Look at all the Republican politicians who tried to stand against Trump and are now out of office. What did they accomplish?
To matter, they have to win, and winning can soon become the only thing that matters.
But in a court system built on precedents, not elections, it’s your decisions that measure your worth. Roger B. Taney was chief justice of the United States for 28 years, but when we hear his name one decision springs to mind — Dred Scott. He wrote the decision that stripped citizenship from Black Americans, rightly tarnishing his reputation forever.
If your decisions are the measure of your worth, then seeking the applause of the crowd can lead you down a dangerous path. Many parts of the Constitution are intentionally counter-majoritarian. They’re designed to protect both individual rights and our republican form of government from majoritarian mobs. “The people have spoken” can be the least convincing argument to federal judges — especially when he or she is interpreting the Bill of Rights.
Due process is rarely popular, for example. And popular speech doesn’t need legal protection. There aren’t many constituencies clamoring for the rights of criminal defendants, and when two sisters who were Jehovah’s Witnesses refused to pledge allegiance to the flag during the height of World War II, they faced punishment, not popular celebration. Yet the decision to protect their right not to speak is one of the Supreme Court’s finest moments.
I’m not naive. I know there can be a dark side to a culture of counter-majoritarian independence. At their worst, federal judges can be arrogant and imperious.
But even this stubborn pride is having a virtuous effect. Both professionalism and pride are working together to preserve our constitutional order. If you try to intimidate a judge, you’re often confirming to the judge the necessity of her or his ruling. And some judges take acts of intimidation as a kind of personal insult. They don’t become afraid. They just get mad.
We should be grateful for that anger. It’s stiffening their backs, not altering their reasoning. The combination of dedication to the rule of law and a kind of “How dare you?” stubbornness in the face of intimidation is resulting in one of the rarest spectacles in this miserable modern political era — one branch of government actually doing its job.
David French writes a column for the New York Times.
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