Tweet Share Share Comment If Trump is elected president in 2024, he has a whole lot of alarming plans to remake the judiciary, the civil service, the Justice Department, and policing and immigration law, as we learned last week. Plus, there are plans to do away with the existing system of legal checks on executive power if the GOP secures the presidency. But lost in the shuffle may be one of the most terrifying positions of all of Donald Trump’s 2024 campaign: He no longer thinks that Leonard Leo and the Federalist Society—the entities we have just started to understand as they continue to increase their influence and power—are conservative enough.
In a recent piece in the New York Times (doubtless pushed by Leo himself), we learned that the old nutters are the new normies. On this week’s Amicus podcast, FedSoc biographer and observer Amanda Hollis-Brusky joined Dahlia Lithwick to try to understand whether the conservative legal movement has just wilted before our eyes. Hollis-Brusky is a professor of politics at Pomona College and author of 2015’s Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution, and co-author of 2020’s Separate but Faithful: The Christian Right’s Radical Struggle to Transform Law and Legal Culture. Our conversation has been lightly edited for clarity.
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Dahlia Lithwick: The New York Times reports that Donald Trump really decided he hated his White House lawyers when he wanted to overturn the 2020 election and they told him no. Is that the moment? Is that the moment at which he just starts pulling from wherever he could find people that were willing to say, “Oh, yeah, this is perfectly legal,” because, why not?
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Amanda Hollis-Brusky: It seems to me that that is such a high-stakes moment for Trump. It’s the moment in 2020 at which he’s going to hang on to power or he’s not. And that’s also a high-stakes moment for these FedSocs who are sort of watching this happen and then listening to what the president wants. And even someone as conservative as Mike Pence has reservations about pursuing what would be a radical plan to keep Donald Trump in office and to overturn the 2020 election.
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Now at the same time, they’re all rowing in the same direction. Leonard Leo starts the Honest Elections Project. He’s just trying to do it in a way that looks more legitimate. So there is an effort—state by state—to try to question the election results. And the FedSocs are deeply invested and involved in that—but they’re not involved in it in the way John Eastman is. This is the highest-stakes moment for Donald Trump. And when he doesn’t get the answers he wants, Trump goes and seeks out folks who are, as you said, far more fringy and radical in their thinking, to the point where they’re actually possibly being disbarred because what they’re proposing is actually so unlawful.
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What you’re saying is that Leonard Leo is like: “No, the gentlemen’s way to do this is just to suppress the vote. We do it within the confines of the law.” Whereas John Eastman is like: “Oh, I’ve got a better idea! Let’s just throw out the election results.” And that latter just seems unseemly. It’s about optics and feelings, and a very visceral sense of where the line is between the two, that is coming from inside FedSoc.
Yeah, this is the gentlemen’s way—the gentlemen’s way preserves the very institutions that these folks are deeply invested in preserving. Whereas the non-gentlemen’s way, the John Eastman way, where he almost burns down those institutions … they’re rowing in the same direction. But the gentlemen’s rowboats are not going fast enough for the speedboat that is Donald Trump and John Eastman and Rudy Giuliani, who don’t care what kind of wake they’re causing.
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The New York Times piece from Nov. 1 talks about a former senior Trump administration official who runs a think tank. They’re talking about Stephen Miller, not a lawyer. And John McEntee, not a lawyer. Also Mark Paoletta, Mike Davis; a bunch of people, some of whom are not attorneys at all. Some of them, I guess, are people who are disenchanted with the Federalist Society. But where are all these little hatchlings coming from?
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FedSoc starts as a smaller and more identifiable group of elites. But as it becomes powerful, it attracts anyone right-of-center who wants any kind of shot at being a political appointee, a law clerk, a judge, or a justice. So it becomes the gatekeeper organization. And yet there are folks who operate very much at the margins of the Federalist Society.
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One thing I talk about in my second book, Separate but Faithful, is that the real fringy kind of Christian-right folks were kept out of the mainstream at the beginning of the Federalist Society. The FedSocs wanted to be taken seriously by their liberal elite law-school colleagues. So the idea that you would say “God’s law over man’s law” and “We need to get back to a Christian worldview” was really kept out of the mainstream.
What Donald Trump has done is make that acceptable by courting evangelicals, by going to Liberty Law School, Jerry Falwell’s law school. By building relationships with that Christian worldview. Because they were not actually taken very seriously even by FedSoc. And so, where are these folks popping up from? I’m not saying they’re going to these Christian-worldview law schools, but there are conservative lawyers who exist at the mainstream and fringes of the Federal Society who join because they know that is synonymous with career advancement for conservative lawyers—but who aren’t going to play by Leonard Leo’s gentleman’s rules.
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… So much of what Donald Trump wants cannot be accomplished through the law. Which is why, as you note, so many of these folks advising him are not lawyers. And his question is going to be: How far can we push to stretch the law before it’s just lawless and it’s acknowledged by everyone as lawless?
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The conservative elites who have spent four decades investing in legal institutions—they’re deeply invested in the fact that these institutions need to be seen as legitimate, as respectable. And Trump and his team right now are working very hard to dismantle that.
I think that is going to be the real battle. Does the left enlist Leonard Leo and conservative lawyers in service of preserving the courts, or just point out, hey, these courts have been illegitimate for a long time, they’ve just been doing it in in this more gentlemanly, acceptable way—by disenfranchising voters—but not by overtly trying to overturn the 2020 election? Or via ”colorblind constitutionalism”—but not outright racism in the form of American First white supremacy.
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I think this is going to be the interesting tension moving forward.
I’m really curious about who’s using who. There was a funny line in the New York Times piece where it says Leonard Leo starts to cool on Donald Trump because he doesn’t like that it looks transactional.
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It can be transactional, but it can’t look transactional. Those appearances are very important to maintaining the integrity of the law and the legal system. From my perspective, Donald Trump is all id. He’s not playing three-dimensional chess with anyone. He is just going by his emotions. And Leo and folks thought they could maneuver Trump in particular ways. And now that Trump is out of power and looking to gain power again, he’s going to try to do it on his own terms.
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I do think Leonard Leo is thinking through his next move right now. And I actually think Leonard Leo benefits from that story in the New York Times because it makes Leonard Leo and the Federalist Society look like normies, right? That they’re mainstream. And it’s Trump and these other folks who are very fringy and radical. And so when we think about the Overton window—the window of what is normal and acceptable—you can move that by exposing people to something that’s so fringy and so radical that what you’re proposing looks pale in comparison.
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Let’s talk about the FedSoc justices. Because suddenly we live in a world in which Brett Kavanaugh and Amy Coney Barrett, the former darlings of FedSoc, are the “moderate center” of the U.S. Supreme Court and are seen to be pumping the brakes on even their own ideas from two terms ago. They are the ones who seem to be saying, “Oh, we’re a lot of things, but we’re not crazy MAGA justices.” Even insisting on the new ethics rules—that’s also coming from Kavanaugh and Barrett and the chief justice. That is not coming from the far-right wing of the court. I find myself wondering if this “moderate center” of the U.S. Supreme Court is emblematic of the FedSoc problem you’re describing, which is that these folks were seen as radical, wildly out-of-touch justices not two years ago, and suddenly they’re the new Justice Kennedy and Justice O’Connor.
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Part of the work is to normalize and legitimate ideas, and that doesn’t just happen on the Supreme Court. And one of the roles that the Federalist Society has played over time is that through legal scholarship and through appearances at public events, they have kind of normalized and legitimized originalism, which 40 years ago was seen as wacky and off-the-wall. And now we’re in a place where, not only are we originalists, but the left is embracing and adopting originalism. Because it’s become the dominant discourse on the court.
That didn’t just happen because Supreme Court justices started issuing originalist opinions. A lot of that, what I call cultural capital, was built outside the court by these networks. When we think about Kavanaugh and Barrett as representing the new moderate centrist view on the court, that’s not just a reflection of the court. It’s a reflection of all of this work that’s been done outside the court and how they’re able to define themselves against the fringy, now-radical, now-lunatic MAGA lawyers. America First lawyers are doing a lot of this work again, on behalf of the court and on behalf of the Federalist Society, in making their ideas seem very, very mainstream.
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