Is Alan Vanneman a fan of the Federalist Society? Well, not so much. Take a gander a recent post, How the Federalist Society Destroyed the U. S. Constitution, for example. Still, I am always happy to welcome a repentant sinner, as long as they’re truly repentant, and I also believe that it is quite possible to be “scared noble”, because I’ve seen it happen. And this is happening to some members of the “conservative” legal association known as the Federalist Society, whose present and former members are prominent throughout the federal judiciary, and on the bench of the Supreme Court in particular. But not all of them, and, in particular, not all the time.
I believe that the most prominent case of fearful nobility in the era of Trump has been that of William Kristol, someone whom I pretty much despised for several decades, the civilian most responsible for our utterly disastrous 2003 invasion of Iraq, which wasted trillions, cost a likely minimum of 110,000 lives, according to a secret (of course) estimate of the U.S. military, made public courtesy of Wikileaks, turned the lives of tens of millions of people upside down, made the Middle East even less stable than it had been, and significantly damaged the image of the U.S. around the world.1
Yet “Bloody Bill”, as I like to call him, was one of the first—and one of the loudest—voices to arise on the Right in protest against The Donald. Bill instantly recognized the pure corruptness of Trump, that there was nothing he would not descend to. And Bill, unlike so many on the right, refused utterly to make his peace with Trump, to make excuses, to blame the Democrats, to try to change the subject, all the sort of little dodges that “intelligent” conservatives like Megan McArdle and Ramesh Ponnuru like to come up with. (And they are intelligent; intelligent but morally compromised.)
Well, the point of this little detour and frolic, which I hope is not too foam-flecked, is to point out that Federalist Society folks—when they aren’t, you know, destroying our Constitution in the name of their fraudulent doctrine of “Originalism” (aka “naked self-interest”)—can still be capable of, you know, doing good!
A case most definitely in point is the record of Republican-appointed federal judges (even Trump-appointed ones, in many cases) of rejecting Trump’s power grabs, to the extent that Trump exploded in rage at the Federalist Society itself, for not “teaching” (my word) lawyers to be utterly submissive to Trump’s will, as Federalist Society member David French discusses in this more than a little rosy-hued opinion piece for the New York Times. In addition, many “glittering” names on the right (though all that glitters is not gold) also appeared in a “fiery” (so says the New York Times) brief filed in federal court attacking the constitutionality of Trump’s sweeping “now you see ‘em, now you don’t” tariffs.
And that ain’t all (maybe). In the June 16 issue of Politico, Ankush Khardori tells us that The Next Conservative Civil War Is Coming:
Trump recently appeared to declare war on the Federalist Society, the powerful conservative legal advocacy organization that played an essential role in his election both in 2016 and 2024. After one of his first-term appointees ruled against him in a major challenge to his tariffs, Trump launched a public tirade against the former chair of the group, Leonard Leo, who Trump described as a “sleazebag” who “probably hates America” before blaming the group for “bad advice they gave me on numerous Judicial Nominations.”
But the more tangible potential rupture with at least parts of the conservative legal movement is coming over Trump’s decision to nominate Emil Bove — formerly Trump’s criminal defense lawyer, currently Trump’s enforcer at the Justice Department — to the U.S. Court of Appeals for the Third Circuit.
It’s true that Bove’s record is beyond abysmal, as I noted in this post, Danielle Sassoon is AMAZING! If only she knew her Scalia!, praising Federalist Society member and former assistant federal district attorney Danielle Sassoon for scornfully rejecting Bossman Bove’s “order” that she dismiss the charges against New York City Mayor Eric “Bagman” Adams without prejudice, which would have allowed the Trump administration to threaten to prosecute Adams all over again if he stepped out of line. And maybe Danielle’s display of virtue will be, you know, catching. But here’s the thing: as Khardori acknowledges, it isn’t the Federalist Society who decides whether the president’s judicial nominations are accepted; it’s the U.S. Senate. And here we’re entering some seriously skanky territory. Unless Bove has been doing drugs while serving in the Justice Department while having sex with a 17-year-old girl, à la Matt Gaetz, whose sins were so egregious that he exhausted even the patience of those paragons of moral complaisance, the Republican members of the U.S. Senate, Bove will probably get the job, Federalist Society be damned. And thus it is more than likely that the federal court system will be littered with éclair-spined dittoheads so shameless as to embarrass an Alito.
Which will be a goldurned shame, but, as my earlier post, “How the Federalist Society Destroyed the U. S. Constitution”, pointed out, the current Supreme Court has already taken the axe to the U.S. Constitution, to the extent that, I firmly believe, that tattered relic of happier times will have to be “overhauled” (as in effectively replaced) once Trumpmania recedes, which, at age 80, I very much wonder if I will live to see. Because the only reason Trump is able to make these terrible appointments is that the current Supreme Court gave him not one but two “Get Out of Jail Free” cards via its decisions in both Trump v. Anderson and Trump v. United States (discussed in “How the Federalist Society Destroyed the U. S. Constitution”), allowing him to run for the presidency for the third time despite trying to overthrow our system of government and illegally cling to power after January 20, 2021 .
Furthermore, despite holding that President Trump doesn’t have the right and power to toss people out of the country and into Hellhole prisons run by like-minded caudillo pals of our own El Jefe just on his own goddamn say-so, “our” Supreme Court is still rewriting the Constitution to ease the way for Trump’s power-grabbing, as explained for us in a surprisingly lucid manner (at least I thought so) by the occasionally reliable Andrew McCarthy,2 writing at the National Review, The Courts Botch the Trump Tariffs Case. As Andy tells it, and I believe him, in a recent decision, the six Court “conservatives” rewrote the rules of federal civil procedure in order to give themselves time to figure out how to make Trump happy by giving him power to fire the heads of federal “independent” agencies, which would require them to overturn a previous Court decision, without giving him the power to fire the head of the independent agency known as the Federal Reserve, even though there are no possible constitutional grounds for making the Fed “different”. In other words, the “Unholy Six” rewrote the Constitution in order to give themselves time to rewrite the Constitution again, all to make Trump happy without destroying the U.S. economy, which, the Republican justices think, is pretty important too.
The immediate effect of the changes made in civil procedure by the Court has been to allow Trump’s tariffs to remain in effect (Andy argues that they should have been “stayed” pending a full review of the question of their constitutionality and would have been stayed under previous Court rulings). In the future, Andy says “there are going to be many more specious legal claims, along with incalculable damage done to Americans whose rights are being violated.” (The first “specious” legal claim that Andy is referring to is the Trump Administration’s claim that the Trump tariffs are constitutional, which a lower court accepted, at face value, as grounds for rejecting the request for a “stay” of the tariffs, in obedience to the Supreme’s recent rewrite of the law governing how such requests should be granted or rejected.)
Clearly, the Court does not want Trump to get his greedy little hands on the nation’s money supply. But the notion that the “Framers”, way back in 1787, “knew” that sometime in the early 1900s the U.S. would create something called the “Federal Reserve,” and that sometime in the early 2000s a gluttonous sociopath would seize control of the presidency, and that the Framers then somehow wrote into the Constitution restrictions that would somehow prevent said gluttonous sociopath from getting his greedy little hands on the Fed—well, I know Catholics3 are supposed to be able to believe six impossible things before breakfast (like the White Queen in Lewis Carroll’s Through the Looking Glass), but, even so, this is pushing it.
All of this equivocatin’, tergiversatin’, and general lying by the Court gives the lie (for the fourteenth thousand time) to the notion that there are actually “meaningful” legal doctrines such as “originalism” and “textualism” that are capable of guiding constitutional decision-making in a coherent, consistent, and objective manner, rather than producing a corrupt mélange of result-driven jiggery-pokery of the lowest and most shameless order, which is what the Supreme Court “conservatives” have given us for decades, about which I have most loudly moaned for almost as long.
Afterwords
In a recent article for the New York Times, The Supreme Court Is Divided in More Ways Than You’d Think, Catholic University Law Professor J. Joel Alicea (apparently, that’s how he signs it), points out that, even if you assume that the Unholy Six are actually “honest”—which the good professor sportingly does and which is doing them a huge favor that is entirely undeserved—they still can’t make Originalism “work”—that is to say, produce decisions that they can all actually agree on. What a surprise!
1. Excuse me for running on like this, but the mere consideration of Bill’s many crimes makes me angry all over again.
2. I say “occasionally” because Andy wanted to impeach both Obama and Biden but not Trump. Go figure!
3. All six Court Republicans are Catholic.
