New York Times constitutional expert dissects Trump-Leonard Leo spat

MOUNT DESERT, June 1, 2025 - The New York Times this morning finally caught up with the Donald Trump-Leonard Leo contretemps in which Trump called the Northeast Harbor resident a “sleazebag” in his Truth Social Post last Thursday.

The column by David French, a former constitutional litigator and member of the Federalist Society, was illuminating in explaining why Trump and many of us misunderstood the organization.

Here are some key excerpts:

“The Federalist Society never capitulated to Trump. It’s a decentralized group, and its members are stubbornly independent. I’ve spoken to dozens of Federalist Society student groups, and they can vary wildly from school to school. One chapter can be reasonably Trump-friendly (but never, in my experience, fully MAGA), while another is mainly Never Trump.

“For every John Eastman — a Federalist Society luminary who was prosecuted and suspended from practicing law in California after he helped Trump try to steal the 2020 election — there are multiple Federalist Society judges and lawyers who’ve ruled against him or resisted him in other ways.

“During his first term, Trump had a worse record at the Supreme Court — which had a Republican-nominated majority — than any previous modern president. When he challenged the outcome of the 2020 election, Federalist Society judges ruled against him time and again.

“According to an analysis by a political scientist at Stanford, Adam Bonica, as of May, Republican-appointed district judges ruled against Trump 72 percent of the time. That number is remarkably close to the 80 percent rate of losses before Democratic-appointed judges.

“Another way of putting it is that when there is a conflict between conservative legal principles and Trump’s demands, conservative judges almost always adhere to their principles. Members of Congress do not.

“The immense pressure that Trump puts on his perceived rivals and opponents exposes our core motivations, and the core motivations of federal judges are very different from the core motivations of members of Congress. Think of it as the difference between seeking the judgment of history over the judgment of the electorate, and to the extent that you seek approval, you place a higher priority on the respect of your peers than the applause of the crowd.

“Look at all the Republican politicians who tried to stand against Trump and are now out of office. What did they accomplish?.

“But in a court system built on precedents, not elections, it’s your decisions that measure your worth. Roger B. Taney was chief justice of the United States for 28 years, but when we hear his name one decision springs to mind — Dred Scott. He wrote the decision that stripped citizenship from Black Americans, rightly tarnishing his reputation forever.

“If your decisions are the measure of your worth, then seeking the applause of the crowd can lead you down a dangerous path. Many parts of the Constitution are intentionally counter-majoritarian. They’re designed to protect both individual rights and our republican form of government from majoritarian mobs. ‘The people have spoken’ can be the least convincing argument to federal judges — especially when he or she is interpreting the Bill of Rights.

“Due process is rarely popular, for example. And popular speech doesn’t need legal protection. There aren’t many constituencies clamoring for the rights of criminal defendants, and when two sisters who were Jehovah’s Witnesses refused to pledge allegiance to the flag during the height of World War II, they faced punishment, not popular celebration. Yet the decision to protect their right not to speak is one of the Supreme Court’s finest moments.

“At their worst, federal judges can be arrogant and imperious.

“But even this stubborn pride is having a virtuous effect. Both professionalism and pride are working together to preserve our constitutional order. If you try to intimidate a judge, you’re often confirming to the judge the necessity of her or his ruling. And some judges take acts of intimidation as a kind of personal insult. They don’t become afraid. They just get mad.

“We should be grateful for that anger. It’s stiffening their backs, not altering their reasoning. The combination of dedication to the rule of law and a kind of ‘How dare you?’ stubbornness in the face of intimidation is resulting in one of the rarest spectacles in this miserable modern political era — one branch of government actually doing its job.”

Leonard Leo is best known locally for the frequent protests in front of his house and the arrest of a protester in 2022 whose case was dismissed by the district attorney and who later won a monetary settlement against local police officers.

Last week, I published this account of his influence on a Maine fishing lobbying group.