If Trump Can Crush Elon Musk, What Can He Do To Leonard Leo And The Federalist Society?

One Abiding Maxim About The Trump Era: It Can Always Get Worse

Bill Kristol has already declared Trump the winner of his little dust-up with Musk— although Musk reminded House Republicans to choose wisely because Trump will only be president for three and a half more years while he’ll be around for 40 more. “Trump had gotten what he needed from Musk, and he wanted Musk gone,” wrote Kristol, forgetting the promised but undelivered $100 million check for MAGA Inc. “The firing was spun as a ‘breakup’ or ‘divorce.’ But in fact Musk was dumped. Trump offered Musk a reasonably gracious exit, with a public expression of gratitude and a key to the White House. But Musk chose not to go quietly. The ketamine-addled Musk chose to go to battle stations. But his attack on Trump fizzled.”

In MAGA World no one cared about Musk’s call for a third party or his call for Trump to be impeached, nor even for “the really big bomb”— the Trump-Jeffrey Epstein coverup. Only Democrats and Never Trump Republicans (and maybe independent voters) care about any of that. “The threat fell flat. If you declare you’re dropping ‘the really big bomb’ and it fails to detonate, you’re in trouble… Musk’s wealth depends to a large degree on federal government contracts or favorable treatment from the government. Trump simply reminded Musk that he’s president and could put those contracts and deals at risk. Implicit was the further threat that the massive power of the executive branch, staffed at every key position by Trump loyalists, could be deployed more broadly against Musk, with investigations into a host of his business dealings and, for that matter, his personal life. To put it indelicately: Trump has Musk by the balls. Trump knows it. And now Musk knows it. And so Musk has begun to back down.”

Kristol believes “Trump will emerge stronger than ever, having crushed the richest man in the world. Musk operatives working in the administration— and Musk allies dealing with it from outside— will have to pledge fealty to Trump. Musk’s fellow oligarchs will be cowed. And Donald Trump, meanwhile, will have unparalleled personal control of the executive branch of the federal government… The strongman will be stronger than ever.”

It’s happened before. Trump certainly bested the Bush family, the Cheney family, Paul Ryan, Chris Christie, Mitch McConnell, Jeff Sessions, Mitt Romney, Mike Pence, Ron DeSantis, Club for Growth… all vanquished by Señor TACO. Next up though, is the Federalist Society and Leonard Leo. Earlier this week, Elie Mystal reported that after the US Court of International Trade ruled against Trump’s tariffs, Trump flipped out and wrote “I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges. 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.”

With a $1.6 billion check in his back pocket from Barre Seid, Leo has controlled judicial nominations by Republican presidents since at least 2005 and picked Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett for Señor T. “Everything awful,’ wrote Mystal, “that has been forced on us by the federal judiciary over the past 20 years— from the loss of abortion rights to the evisceration of voting rights to the installation of Trump himself as a king immune from criminal prosecution— has been the direct result of Leo and his influence over judicial nominations (with invaluable assistance from former Senate majority leader Mitch McConnell, of course). Indeed, the few ‘accomplishments’ Trump can claim have been brought to him by his Federalist Society judges… Meanwhile, legal commentator and New York congressional candidate Mike Sacks suggested that Trump began to sour on the Federalist Society a while ago— probably back in 2020, when FedSoc judges refused to endorse Trump’s various legal arguments to overturn the election… It’s not hyperbolic to say that the public break between Trump and Leo may be the biggest legal development of Trump’s second term.”

Trump made a record number of judicial appointments in his first term (since narrowly outpaced by Biden), and the only way he was able to do that was because Leo and the FedSoc had already done all the hard work of standardizing the process of developing conservative judges. Trump can reinvent the wheel and make a handful of appointments based on the guest logs from Mar-a-Lago, but finding 250 people who can be confirmed by the Senate and will reliably agree with Trump on every one of his legal flights of fancy is not a quick or easy process.

Perhaps more important, a rift with Leo makes it unlikely Trump will have as many appointment opportunities as he did in his first term. FedSoc judges like getting replaced by other FedSoc judges. If judges considering retirement are uncertain about whom Trump will appoint, they might not retire after all. That’s especially true of important circuit-court judges and Supreme Court justices. I was sure that Sam Alito would retire at some point before the next election to give Trump an opportunity to replace him with someone younger. Now, I’m not as confident. If Alito isn’t convinced Trump will replace him with Alito 2.0, he might hang around just a little while longer. The same goes double for Clarence Thomas, who doesn’t really want to retire anyway.

Lastly, if Trump is in open war with the FedSoc, then FedSoc judges might feel a little more emboldened to strike down some of Trump’s worst executive orders. In addition to the tariff case, Trump has lost lower-court cases involving birthright citizenship and the mass deportation of immigrants, even in front of FedSoc judges. While the Supreme Court may yet have their king’s back, FedSoc judges as a whole have been more resistant than Trump was told they would be, and may continue to frustrate his agenda.

Unfortunately, that is about where the good news ends. Despite my schadenfreude at Leo getting his face eaten by the unhinged leopard he helped release, this is not a situation where the enemy of my enemy is my friend. If Leo is not in charge of judicial nominations in this administration, who is? I will bet all the money in my pocket that the answer to that question is “a racist ghoul,” but not the racist ghoul you’re probably thinking of. Stephen Miller only acts like he’s a lawyer, but he has no formal legal training and doesn’t really understand what judges do or how they do it. I believe the guy who will be de facto responsible for judicial nominations going forward is Mike Davis.

If you’ve heard of Mike Davis, it’s probably because of his viral racist rants about “violent” Black people. Davis is a former clerk for Neil Gorsuch and a former staffer for Charles Grassley, back when Grassley ran the Senate Judiciary Committee. He’s the founder and president of the Article III Project, a group committed to getting conservative judges confirmed that is even more right-wing than the Federalist Society. Davis has been described by the New York Times as a “take-no-prisoners conservative eager to challenge the left with hardball tactics.”

Davis greeted the news of the Trump/Leo fight with glee, saying that Trump “will pick even more bold and fearless judges in his second term.” He also went on Steve Bannon’s show to slam Leo for “sitting on the sidelines” while Trump tried to overturn the 2020 election.

Trump will still appoint plenty of Federalist Society judges. That’s because all conservative judges are also Federalist Society judges; such has been the power of that organization over the past two decades that there is no such thing as a Republican judicial hopeful who isn’t also a member of the Federalist Society. All squares are also rhombuses.

But not all rhombuses are squares. With Davis’s influence, we can expect Trump’s second term to be filled with “FedSoc judges” whose primary loyalty is to Trump, not the Federalist Society. Davis will find judges who will happily vote to let the Republican candidate steal an election the candidate clearly lost. Moreover, I expect Davis will find at least some judges who think that the 22nd Amendment, which limits a president to two terms in office, is just a suggestion, not a requirement. And should a Supreme Court justice retire or die before 2028, you can best believe that their successor will believe in the Great Replacement Theory and think that birthright citizenship must be prohibited by any means necessary.

If there is one abiding maxim about the Trump era, it is this: It can always get worse.

Still, the process for finding and confirming those “somehow-even-worse” judges will be slower and more chaotic. There will be more opportunities to resist and perhaps even defeat some of these Davis picks. And other FedSoc judges might be convinced to hold on to their positions for just a little bit longer.

The best hope here is that Trump, Davis, and whoever else is involved going forward make picks so despicable and unqualified that even Republican Senators get spooked. Either that, or Trump will start auctioning off judicial appointments like he does ambassadorships.