Late last month, approximately 1 billion news cycles ago, an obscure federal court made President Donald Trump very, very mad.
The US Court of International Trade ruled unanimously on May 28 that the massive tariffs Trump imposed after taking office again are illegal. That ruling was suspended the next day by the US Court of Appeals for the Federal Circuit, and the tariffs will be allowed to remain in effect pending a ruling (arguments are scheduled for late July).
But the appellate court’s decision didn’t soothe Trump. He took to Truth Social on May 29 to post a 510-word screed attacking the judges on the Court of International Trade, before turning his ire toward a more surprising candidate — Leonard Leo, the most important person in the conservative legal movement.
“I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges,” Trump wrote, reminiscing about his first term. “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.”
This breakup surprised many commentators. But not David French.
“If you’re familiar with how the conservative legal movement has interacted with MAGA, you have seen this coming for a while,” French, a New York Times columnist, lawyer, and onetime member of the Federalist Society, told Today, Explained co-host Sean Rameswaram. “You knew this was coming after 2020. Because in 2020, after Trump had really stocked the federal judiciary with an awful lot of FedSoc judges and justices…none of them, zero of them, helped him try to steal the election.”
French spoke with Today, Explained about the origins of the (other) big, beautiful breakup and what it means for the Trump administration and the future of the federal judiciary. Below is an excerpt of the conversation, edited for length and clarity. There’s much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify.
Are you now or have you ever been a member of the Federalist Society?
I am not now, but I have been a member of the Federalist Society. I was a member of the Federalist Society either all three years of law school or the first two years of law school. But it was also a very different time. I think the Federalist Society at the law school at that time, when we would have meetings, maybe 10 or 12 people would show up. Things have changed.
One of the most conspicuous changes is that FedSoc has become an enemy of the president of the United States.
From [2020] forward, you began to see this drifting apart between FedSoc and MAGA. When Trump comes back into office and he doubles down on being Donald Trump, all of this became very, very predictable. Because if the Trump administration’s argument dovetailed with their originalist legal philosophy, they would rule for it. But if it was just simply Trump’s lawless demands, they were going to reject it.
And Trump is baffled by this distinction. He’s baffled by it because congressional Republicans haven’t drawn this line at all. When Trump’s demands conflict with conservative principles, they will yield to Trump’s demands every time. And the judges and justices have taken the opposite tack to such an extent that Republican-nominated judges have ruled against Trump about 72 percent of the time, which is remarkably close to about the 80 percent or so of the time that Democratic-appointed judges have ruled against Trump.
You mentioned a whole host of issues where FedSoc judges have perhaps not given Trump what he wanted. Does the one that finally tips Trump off to go for it on Truth Social surprise you?
It doesn’t, because what really set him off was striking down tariffs. To the extent that Trump loves a policy, he loves tariffs. The Court of International Trade struck it down, and it was pointed out to him that one of the judges on the Court of International Trade that struck down the tariffs was appointed by him. He had been ranting about judges in general. Now he got specific with Leonard Leo; he got specific with the FedSoc. People like me who’d been watching this for a very long time were not wondering if this was going to happen. We were just wondering what was going to be the tipping point: Was it going to be a Supreme Court case? Was it going to be an appellate court? It turns out it was the Court of International Trade that brought us to this moment.
Leonard Leo did not author a decision from this court. Why is he mad at Leonard Leo?
Leonard Leo has long been a key figure in the Federalist Society and was very much a part of the first Trump administration, working closely with the administration to put forward judges.
For a long time, Trump looked at his judicial nominations and waved them like a flag to the American conservative public saying, look what I did. But the more the American conservative public started loving Trump as Trump, versus Trump as what policy wins he could deliver, the less he started waving these other ideological flags, and the more it became all about him. And so this meant that this marriage was going to be temporary almost from the beginning, unless FedSoc capitulated. And if you know anything about FedSoc and the people who belong to it, and the people who’ve come up as judges, I knew they weren’t going to capitulate. It’s a very different culture from political conservatism.
Do you think Donald Trump didn’t realize that?
I don’t think he realized that at all. He’s had this entire history politically of when Republicans disagree with him, they either fall in line or they’re steamrolled. And so it’s so interesting to me that he actually began that Truth Social rant that lacerated Leonard Leo and the FedSoc with this question: What’s going on? Why is this happening?
And I totally understand his bafflement. Because all of the political people had surrendered, or almost all of them. And so when he turns around and these judges and justices just keep ruling against him, you can understand why he would take that as, “What’s going on here? I don’t get this. I don’t understand this. I’ve been assured that these were good judges.” And so that’s where you get to that real tension.
Do you think this rift with the Federalist Society will affect how he appoints judges going forward?
The short answer to that question is yes. The longer answer to that question is heck yes. A lot of people were worried about this because they were thinking, Okay, Trump 1.0: He has General Mattis as his secretary of defense. Trump 2.0: He has Pete Hegseth. You can do this all day long. The Trump 1.0 early nominations — sound, serious, establishment conservatives. Trump 2.0 — often MAGA crazies. The question was, “Is this same pattern going to establish itself in Trump 2.0 on judges?”
And then he appointed to the Third Circuit Emil Bove, this DOJ enforcer of his who was responsible for the effort to dismiss the Eric Adams case. He’s nominated him for the Third Circuit, and a lot of people are now saying, “Oh, now that’s your harbinger right there.”
Right now the conservative legal movement is not what it was then. It is fractured in many of the same ways that the political Republican world has fractured. And so there’s a lot more MAGA lawyers now. There are a lot more MAGA wannabe judges now. And so I do think you’re going to see Trump tilting in that direction pretty dramatically. The interesting thing about this is that it might impact the retirement decisions of senior Republican-nominated judges. A lot of these guys who are now old enough to retire were appointed by Reagan or Bush, so you have a layer of Bush-appointed judges who might be reaching that age of retirement, and they may not want to be replaced by some sort of MAGA figure.
