The Plan for a Radically Different Supreme Court Is Here

Mr. Toobin is a contributing Opinion writer and the author of “The Pardon: The Politics of Presidential Mercy.”

The Federalist Society, the conservative legal organization founded in 1982, is justly famous for providing a right-wing agenda for the courts and for promoting its allies to be judges and justices. The American Constitution Society, its lesser-known liberal counterpart, recently announced new leadership, and a new goal: to expand the use of the courts to oppose President Trump’s agenda.

Phil Brest, the new president of the A.C.S., which was founded in 2001, participated in a largely unsung success of Joe Biden’s presidency: Serving in Mr. Biden’s White House counsel’s office, Mr. Brest, now 38, helped the president nominate and win confirmation of 235 federal judges, which is more than Mr. Trump’s total in his first term.

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. 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.

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.

In focusing on judicial appointments, Mr. Biden took a lesson from Republican presidents. Earlier Democratic presidents (and Democratic voters) had not placed great emphasis on the importance of judicial appointments. Barack Obama chided his fellow Democrats for putting too much trust in courts, writing in his 2006 book, “The Audacity of Hope,” “I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.”

As a candidate in 2016, Mr. Trump recognized how much Republicans cared about the courts and strove to ingratiate himself with the base of the party by promising to appoint conservatives to the bench. Advised by Leonard Leo, then the executive vice president at the Federalist Society, among other conservative luminaries, Candidate Trump put forward a list of potential Supreme Court nominees who would advance a right-wing agenda. Mr. Trump wanted originalists, who, Mr. Leo told me in 2017, would “interpret the Constitution the way the framers meant it to be.”

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Jeffrey Toobin is a former assistant U.S. attorney who writes about the intersection of law and politics. He is the author of “The Nine: Inside the Secret World of the Supreme Court,” “The Pardon: The Politics of Presidential Mercy” and other books.

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