Attacking Federalists won't change the outcome

Photo illustration by Slate. Photos by Nordin Catic/Getty Images for the Cambridge Union and Kevin Dietsch/Getty Images.

Federal district courts are pushing back against the Trump administration, and at least so far, they’re holding. During the month of May, as reported in Democracy Docket, federal judges dealt Trump an embarrassing 96% loss rate, agreeing with plaintiffs who challenged his overreach in 26 out of 27 cases.

Federal judges across the ideological spectrum concur that most of Trump's Executive Orders, along with official actions undertaken to effectuate them, exceed the scope of presidential authority, either by exceeding what Congress has explicitly authorized, or, in the absence of controlling legislation, by exceeding Article II authority.

Trump’s propaganda machine spins these losses as “judicial activism,” advancing Trump’s false narrative that adverse rulings have come fast and furious from ‘activist’ judges appointed by Biden and other Democrats. Trump media claim that these judges have acted out of partisan malice to ‘block President Trump’s agenda.’

But the data don’t bear that out. According to a recent analysis by Adam Bonica, a political scientist at Stanford, judges are ruling against Trump consistently, regardless of political ideology. Overall, Trump has lost 72% of cases decided by Republican-appointed judges, compared to an 80% loss rate from Democrat-appointed judges. Given that facts and procedure vary widely by case, Trump’s loss rates of 72% and 80%, although remarkable, are too similar to support any inference of partisan bias.

Unprecedented losses reflect unprecedented presidential actions

Conservatives have advised Trump that he could better shield his agenda from judicial scrutiny by working through Congress instead of trying to govern through fiat. Legislation, after all, could achieve his same policy objectives. Given the abdication of duty on display from GOP legislators, that’s fairly sound advice—if Trump were willing to exert more effort than tweeting threats from the toilet, “his” legislators, holding both house majorities, would likely serve him well.

Other analysts, including Professor Bonica himself, interpret Trump’s judicial losses as pushback to his escalating attacks against the judiciary. Bonica believes that Trump’s attacks on the legal profession itself, including targeting judges and major law firms, triggered a defensive reflex. Since even partisan judges are loyal to the judiciary as an institution, Bonica writes, “When forced to choose between political allegiance and professional identity, many are choosing the latter.”

But legal analysts don’t see Trump’s losses as anything other than defense of the rule of law itself, something all judges take an oath to uphold. Trump’s efforts to expand his own authority are far, far beyond anything our relatively young democracy has ever experienced.

The Constitution incorporated express limitations, including separation of powers, to meet this very moment. These limitations were designed to check a rogue president of questionable sanity. Judges have put them into play as intended, as Trump has already:

• · Defied at least three judicial orders on deportations, including a unanimous order from the Supreme Court;

• · Gutted federal agencies with no understanding of how they functioned or who they served;

• · Attacked American institutions of higher learning by trying to infuse propaganda into their curricula;

• · Tried to reorder the global economy through nonsensical tariffs;

• · Tried to re-draw maps starting with the Gulf of America while hinting at a takeover of Canada, war with Denmark, and invasion of Mexico;

• · Ushered in a police state where masked agents with no badges grab people off the streets and imprison them abroad without due process; and

• · Defied Congressional actions to address worsening climate change by blocking offshore wind projects, prioritizing coal and fossil fuels, and canceling $20 billion in clean air and affordable energy grants.

The only thematic consistency driving these acts is the goal of expanding Trump’s naked power, injury to the nation be damned.

Trump was triggered most by the tariffs ruling

Judicial pushback to these executive actions has been consistent, but the opinion that seems to have triggered Trump the most, at least so far, was the unanimous decision from the U.S. Court of International Trade (CIT) that struck down most of his tariffs, now stayed temporarily.

The CIT held that Trump’s broad tariffs usurped Congress’s powers based on supposed “emergency” powers. The CIT ruled that the 1974 Trade Act barred the president from using emergency powers in response to trade deficits, in part because trade deficits reflect many factors and many decades of policy decisions, refuting Trump’s “emergency” claim. The court found that Trump's use of emergency tariffs to gain leverage over other countries was not authorized by Congress, checking Trump’s attempt to confer unlimited powers on himself by recasting long-existing problems as “emergencies.”

The unanimous CIT decision, which Stephen Miller called “judicial tyranny,” and Karoline Leavitt called a “brazen abuse of power,” came from three appointees- one from Reagan, one from Obama, and one from Trump himself.

Trump attacks the Federalist Society

In response to the CIT ruling, Trump pointedly attacked Leonard Leo, the architect of the conservative judicial movement. Leo, who has long led the Federalist Society, is credited with stacking federal courts with conservatives including Trump’s own Supreme Court nominees Gorsuch, Kavanaugh, and Coney Barrett, all of whom voted to overrule Roe v. Wade, the number one, decades-long goal of conservative activists.

All three justices also gutted Chevon to block administrative expertise, and joined the legally infirm 2024 immunity opinion that enabled Trump’s current crime spree, paving the way for him to solicit gifts from foreign leaders, pursue private real estate deals with dictators, sell presidential access through a family Bitcoin scheme, and issue pardons for tax evaders and anyone who commits political violence in his name.

But a license to crime is not enough for Trump. Trump’s attack on Leo shows that he expects “his” appointed judges to give him carte blanche permission to decimate the Constitution, to so grossly expand his own power that he’ll never face legal accountability again. Calling Leo a “sleazebag” and “a bad person,” Trump claimed Leo “probably hates America,” projecting his own animus onto Leo in trademark Trumpian fashion.

Leo brushed off Trump’s insults, essentially noting that with Trump, the Federalist Society got what it came for, what’s a little name-calling among friends? Trump now knows he was Leo’s useful idiot, the same lesson he’s learning slowly, slowly—ever so slowly— from both Putin and Xi, the same lesson he’s learning from much sharper negotiators on the other side of the ‘taco.’

As Trump rails against the power his originalist enablers hold over him, the bitter irony is that if it weren’t for Federalist Society judges, Trump would be in prison today instead of gleefully wrecking the country.

Sabrina Haake is a 25+ year federal trial attorney specializing in 1^st and 14^th A defense. Her columns are found @ Alternet, Chicago Tribune, Howey Political Report, Indiana Democrats’ Kernel of Truth, Inside Indiana Business, MSN, Out South Florida, Raw Story, Salon, Smart News, South Florida Gay News, State Affairs, and Windy City Times. Her Substack, The Haake Take, is free.