The administration has surely overreached at times, taking aggressive legal positions and skirting statutory requirements, but it’s still striking that Trump has incurred more nationwide injunctions than all previous presidencies combined. Trump 2.0 has led to Legal Resistance 2.0, as sanctimonious progressive Democrats try to stymie a democratically elected president in the name of democracy.

These jurisprudential frustrations have led to withering criticism from White House officials, culminating in the president’s calling Leonard Leo a “sleazebag” who “openly brags how he controls Judges, and even Justices.” Trump went on to lambaste the Federalist Society “because of the bad advice they gave me on numerous Judicial Nominations.” 

Never mind that the Supreme Court has ruled for the administration more often than not, even on the “emergency docket” requests for stays of injunctions. Or that nearly all the judges who have ruled against Trump were appointed by Democratic presidents. Or that none of the Court of International Trade judges whose anti-tariff ruling triggered Trump’s Truth Social screed were Federalist Society-affiliated. The panel’s sole Trump appointee, Timothy Reif, is a Democrat. By law, no more than five of the court’s nine active members can be of the same party.

Moreover, the Federalist Society doesn’t advise on nominations or anything else. Believe me: I’ve been a longtime “Fed Soc” practice group leader and an active speaker at its student and lawyer chapters, and there’s never been a committee, task force, or program that compiles lists or recommends judicial candidates.

But regardless of where Trump got his advice or who ran his first-term judge-picking operation — it was actually White House counsel Don McGahn — the most significant and lasting effect from that term is in the judiciary. With the help of Sen. Mitch McConnell (R-KY) in the Senate, Trump appointed 54 people to the circuit courts, nine more than former President Joe Biden and just one fewer than former President Barack Obama in two terms. These are solid, smart, courageous judges, a disproportionate number of whom have made names for themselves with hard-hitting and intellectually rigorous opinions questioning the status quo.

As for the Supreme Court, Trump loyalists increasingly assail his appointees as being soft, but Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were essential to ending racial preferences in college admissions, overturning Roe v. Wade and Chevron deference, preserving religious freedom and property rights, restoring gun rights, stopping Biden’s vaccine mandates and student loan forgiveness, and indeed giving Trump the immunity that shut down the lawfare against him. Barrett has gotten the strongest criticism lately for allegedly drifting left, but she was in the majority in all those cases and more! On the last day of the term, she authored the CASA decision that limits those pesky district courts, while slapping down progressive Justice Ketanji Brown Jackson’s dissent as “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.” The previous week, she wrote the most conservative opinion in Skrmetti, which was joined by Justice Clarence Thomas and favorably referenced by Justice Samuel Alito. 

If the complaint is that the latter two are better than Trump’s trio, most Federalist Society members would agree. Moreover, Thomas and Alito themselves frequently attend and participate in Fed Soc events, and Alito has used his connections with Wall Street Journal editors to respond to critics in that publication, which has also been smeared as too establishmenty!

What’s going on here is an inapt transfer of the MAGA Right’s political fights with traditional Republicans onto the legal landscape, as well as a misunderstanding of the dynamics of judicial appointments more broadly. Judges chosen to fit one president’s legal-policy agenda may disappoint his partisans down the line when the constellation of salient legal issues has changed. For example, former President George W. Bush wanted strong defenders of executive war powers, which he got in both Alito and Chief Justice John Roberts. But Roberts has disappointed conservatives and populists alike on other things, and he has the most tenuous connection to the Federalist Society of any GOP nominee since David Souter.

The focus of Trump 1.0 was, in Bannon’s memorable formulation, “deconstructing the administrative state,” which is what Gorsuch and Kavanaugh especially showed in their judicial records and what they and Barrett have repeatedly delivered. Trump 2.0 may have a different focus, though cases involving DOGE funding cuts and presidential authority to remove agency heads will return to the Supreme Court, but if Trump gets another chance to shape the high court, his pick will likely come from among Fed Soc stalwarts he appointed to the bench, such as Patrick Bumatay, James Ho, Steven Menashi, and Andrew Oldham.

RESISTANCE WILL ONLY MAKE TRUMP STRONGER 

We see that from second-term lower-court picks, all but one of whom have conventional pedigrees in the offices of state attorneys general and the like. The one exception is Justice Department official Emil Bove, who’s been nominated to the 3rd Circuit and recently survived a hearing in which Democrats tried to paint him as a cartoonish thug, the “enforcer” for his political masters. But Bove also has sterling credentials, including being an honors graduate of Georgetown University Law with prestigious clerkships for textualist-originalist judges. Federal prosecutors tend to be less involved with the Federalist Society than lawyers on other career paths, but, as three former Republican judiciary counsel recently wrote, there’s nothing in Bove’s record, other than his work on Trump’s criminal defense team, to indicate that he somehow deviates from the norm.

In sum, the Federalist Society has always been a debating and networking society housed under a big tent. To the extent there are disagreements among the midcareer lawyers who are now in a prime position to be called to the bench, those all fit comfortably under it. The last days of the Supreme Court term only reinforced the idea that the conservative legal movement, far from experiencing a crackup, is stronger than ever.

Ilya Shapiro is director of constitutional studies at the Manhattan Institute and author, most recently, of Lawless: The Miseducation of America’s Elites. He also writes the Shapiro’s Gavel newsletter on Substack.