Plan launched to further use of the courts to oppose Trump's agenda

Back in 1982, the Federalist Society was founded with the goal of pushing U.S. courts to the right. And their efforts have been successful: Although Democrats have won the popular vote in seven of the United States' last nine presidential elections, six of the U.S. Supreme Court's justices are GOP appointees. Three of them — Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett — were championed by the Federalist Society and appointed by Donald Trump during his first presidency.

Not all of the conservatives who have been active in the Federalist Society over the years, however, are pro-MAGA. Attorney George Conway and retired Judge J. Michael Luttig are on the right but very much in the Never Trump camp.

Meanwhile, the American Constitution Society (ACS), founded at Georgetown University in Washington, DC in 2001, was modeled after the Federalist Society, but with the goal of moving the U.S. courts in a more liberal/progressive direction.

In an op-ed/essay published by the New York Times on February 16, legal expert Jeffrey Toobin stresses that the "new leadership" at ACS has "a new goal: to expand the use of the courts to oppose President Trump's agenda."

New ACS President Phil Brest, Toobin notes, helped former President Joe Biden "nominate and win confirmation of 235 federal judges."

"Those judges — and others appointed by Democratic presidents — have proved that the most effective resistance to Mr. Trump has come not from Democratic politicians, but rather, from federal judges," Toobin explains. "In the last several weeks alone, these judges, many of them Biden appointees, have ordered the release from immigration custody of five-year-old Liam Ramos and his father and their return to their home in Minnesota; blocked the Trump Administration from ending temporary protections from deportation that had been granted to thousands of Ethiopians living in the United States; and directed the Trump Administration to allow members of Congress to make unannounced visits to ICE detention facilities."

Toobin adds, "According to a Times analysis of federal appeals court rulings in 2025, judges nominated by Mr. Biden ruled in support of Mr. Trump’s policies 25 percent of the time, while those appointed by Mr. Trump supported him 92 percent of the time.

Toobin notes that when the Federalist Society was created in 1982, the "liberalism of the Warren Court era still influenced the Supreme Court." Chief Justice Earl Warren was a Republican nominee of President Dwight D. Eisenhower, yet many decisions applauded by liberal and progressives — from New York Times v. Sullivan to Griswold v. Connecticut to Stanley v. Georgia — came from the Warren Court.

In 2026, Toobin argues, Democrats need to understand what worked for the Federalist Society and use their methods to move the federal courts to the left.

"The members of the Federalist Society took the risk that Democratic legal thinkers have so far avoided," Toobin observes. "Though the Federalist Society does not as a group take formal positions on issues, the Federalists gave a platform for their clear agenda and absorbed the criticism that came with it. But when they won elections and thus seats on the Supreme Court, they knew what they wanted to do and why, and they changed the face of American law. Democrats can do the same, but first they have to try."