This article was originally published by Verfassungsblog and is republished here with its permission.
Towards the end of June, as a Republican congress vamped up efforts to pass the signature legislation of President Donald Trump’s second term, and SCOTUS completed its docket for the Spring, another major controversy flared in the halls of Washington, DC. Trump nominated Emil Bove III, a former attorney of his, to the United States Court of Appeals for the Third Circuit. The Bove nomination signals a turn away from the Federalist Society, the signature institution of the conservative legal movement, because Bove is an obvious partisan and loyalist who barely even pretends to put constitutional niceties first. This stands in a larger context of an increasing shift to and dominance of radical forces of the broader New Right movement, which are now making inroads into the inherently conservative judiciary. Trump seems quite aware that, if real limits are to be imposed on his power, it will come from the judicial branch, including its many entrenched conservatives. Weakening the conservative legal movement could thus be a key step in consolidating his power.
Trump seems quite aware that, if real limits are to be imposed on his power, it will come from the judicial branch, including its many entrenched conservatives.
A Nomination amidst Simmering Tensions
Bove served as one of Trump’s criminal defense attorneys before joining the new administration as acting deputy attorney general in January 2025, where he oversaw and enforced substantial changes in the DOJ, including the forced transfer of numerous senior officials and punitive actions towards those involved in the prosecution of the January 6 rioters. He also ordered New York prosecutors to drop charges against Eric Adams, New York City’s mayor. At a confirmation hearing in late June, Bove faced questions from the Senate Judiciary Committee about explosive allegations, made by a DOJ whistleblower, that he had told subordinates that they might ignore court rulings—including court orders having to do with potentially illegal deportations. Such allegations, if true, suggest a less-than-ideal commitment to the rule of law on the part of Bove.
The nomination and hearing have highlighted tensions that have been simmering among intellectual elites on the right for some time between the old conservative establishment and the new, more populist forces supporting Trump. Since 2016, the American right has seen a dramatic reconfiguration of its upper echelons, as formerly peripheral characters like Michael Anton of the Claremont Institute, Yoram Hazony of the National Conservatives, and Postliberalism’s Patrick Deneen gained power under Trump and coalesced into what has been dubbed the “New Right.” In the early months of the new administration, intra-right tensions between the MAGA and DOGE factions of the New Right were front and center and then exploded into a public feud between Trump and Musk. The controversy surrounding Bove has to do with more traditional lines of contestation between establishment insiders and upstart outsiders—between the old legal establishment and the loyalists who surround Trump.
It was only a matter of time before the radical forces of the broader New Right movement made inroads into the inherently conservative judiciary…The worry is that, by appointing loyalist judges, Trump is stepping further down the path of an arbitrary and autocratic cronyism, and further away from the American constitutional order.
It was only a matter of time before the radical forces of the broader New Right movement made inroads into the inherently conservative judiciary—the so-called “least dangerous branch.” Many observers worry that the Bove nomination is part of a hard transition away from the rule of law and the separation of powers on the part of the new administration, and towards a further consolidation of personal power. The worry is that, by appointing loyalist judges, Trump is stepping further down the path of an arbitrary and autocratic cronyism, and further away from the American constitutional order. Trump is an erratic leader, and accounts of Trump’s break with the Federalist Society are arguably overblown. But concerns about the American constitutional order are not.
The Federalist Society and the (MAGA) New Right
The conservative legal movement, and the Federalist Society that is the movement’s signature institution, has its origins in the second half of the 20th Century. As a whole, the movement grew in opposition to the liberalism of the 60s and 70s, and to the liberalizing victories of the Warren Court (1953-1969). It rose to prominence in conjunction with a growing conservative intellectual establishment more broadly. This development began with Arizona Senator and “Cowboy Conservative” Barry Goldwater’s nomination in the 1964 presidential primary, culminated in the presidency of Ronald Reagan, and then dominated the Republican Party through to the end of the Cold War. The Federalist Society was the jurisprudential analog to other right-wing institutional anchors that were forged during this period—from Buckley’s National Review, to The Heritage Foundation, to the budding networks of the Religious Right and Jerry Falwell’s “moral majority.” These groups stood for a small government and libertarian free-market economics, anti-communism and internationalism in foreign affairs, and traditional social values (which was sometimes called conservative “fusionism”). The Federalist Society stood for textualism and originalism, pursuant to a traditionalist understanding of the constitution that often lined up with the political goals of the rest of movement conservatism. FedSoc’s president from its founding in the 1980s through 2024 was Eugene Meyer, the son of Frank Meyer, a longtime senior editor at Buckley’s National Review and the key architect of conservative fusionism.
Today’s New Right stands opposed to the Reagan/Buckley establishment conservatism in several respects. It still opposes liberalism and progressivism, but, as a movement, it stands for nationalist economic policy, anti-immigration policy, greater isolationism in foreign affairs, and, once again, socially traditionalist values. As Michael Anton put it as early as 2016, Trumpism can be defined as “secure borders, economic nationalism, and America-first foreign policy.” It is sometimes described as tacking “right on culture and left on economics.” Apart from these policy shifts, the movement is also deeply critical of established authority. JD Vance, who is a darling of the New Right, described his position as a Senator as “explicitly anti-regime”; others in the movement regularly speak in terms of counterrevolutionary action; and many on the New Right have stood behind John C. Eastman, the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, and author of the so-called “coup memos” that provided President Trump a highly tenuous legal argument for rejecting the presidential election results on January 6th, 2021.
Trump has repeatedly suggested that Federalist Society types are insufficiently radical to serve him well.
Generally speaking, the Federalist Society and the conservative lawyers who constitute their networks have not been so caught up in these particular shifts and populist winds. In his first term, Trump hewed closely to the advice of the Federalist Society (or FedSoc), appointing three new judges to the Supreme Court based on FedSoc vetting, and many FedSoc judges to the lower courts; this strategy of appointments—made with a view to particular judicial outcomes like the overturning of Roe v. Wade— had been decades in the making. January 6th soured the relationship, to a degree. The Federalist Society did not speak out against John Eastman but it did appear to repudiate him quietly in the aftermath of January 6th, 2021. Though the Trump administration amassed several important victories during the recent SCOTUS term, many Trump-appointed (and FedSoc-vetted) judges, including those on the Supreme Court, have ruled against Trump’s actions in the past, at times drawing the ire of MAGA actors; and Trump has repeatedly suggested that Federalist Society types (along with the group’s leader, Leonard Leo) are insufficiently radical to serve him well.
The Legal Minds of MAGA
While the MAGA New Right has not succeeded in infiltrating and overhauling the Federalist Society, it does have constitutional thinkers all its own, including some who occupy positions of extraordinary prestige. Foremost among them is Adrian Vermeule, Professor of Constitutional Law at Harvard University. Vermeule, like Bove, is not a big Federalist Society insider. But very much unlike Bove, Vermeule stays high above the partisan fray. A highbrow, ivory tower actor, he is the most important legal thinker of the New Right, and important behind-the-scenes leader of what the scholar Kevin Vallier has called “the premier radicalism on the New Right.” He has, over the course of his career, given the New Right an awful lot to work with.
While the MAGA New Right has not succeeded in infiltrating and overhauling the Federalist Society, it does have constitutional thinkers all its own, including some who occupy positions of extraordinary prestige.
His 2022 book Common Good Constitutionalism represented Vermeule’s attempt to replace both legal originalism and progressive “living constitutionalism” with a true conservative legal philosophy. The starting point for the new interpretive model, as he put it in his an essay for The Atlantic magazine titled “Beyond Originalism,” was “the substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution.” In stark contrast to most originalist doctrine, Vermeule saw it as imperative that judges and officials be allowed to “legislate morality,” with a view to the common good—defined by Vermeule with extraordinary vagueness as “justice, peace, and abundance” and “health, safety, and security.”
In stark contrast to most originalist doctrine, Vermeule sees it as imperative that judges and officials be allowed to “legislate morality.”
This was a new kind of illiberal judicial activism that contravened older FedSoc-style establishment norms. It offered extraordinary latitude to judges and other officials in their role as interpretive agents of the law. Rather than abide by the strictures of the constitutional text, or of originalist intent, or of legal precedent, actors would be free to make judgments based on their understanding of what served the common good because, according to Vermeule, that moral framework was the rock-solid foundation of all true law and of the American legal order. If the theory sounds extremely vague and underdeveloped, that’s because it was—and it was panned as such by reviewers from across the American academy.
Vermeule is also an enthusiastic supporter of almost limitless executive prerogative power.
It’s also worth noting that Vermeule’s thought contains a well-established authoritarian bent that is entirely in keeping with the consolidation of executive power that has been part of the American story for decades now and continues at an accelerated pace under Trump. Vermeule’s particular area of expertise is the administrative state and here he stands, once again, against his FedSoc brethren. The special twist here is that Vermeule is also an enthusiastic supporter of almost limitless executive prerogative power. In his book with Eric A. Posner Executive Unbound: After the Madisonian Republic, the authors argued that the constrained executive of the original American constitution was effectively defunct, having been replaced by a strong centralized presidency checked only by political and cultural restraints. This was a good thing. Vermeule and Posner leaned heavily on the work of Carl Schmitt to make their case, and one of their chapters warned against “tyrannophobia.” In a follow-up essay on Schmitt, they wrote that “Schmittian commissarial dictatorship is just the purposive approach to legal interpretation, writ very large and applied to the constitution as a whole.”
Should Trump decide to defy a ruling that does not go his way, then there are many people in and around the administration, and potentially including JD Vance, who, primed by Vermeule’s arguments, will be ready to argue in a Schmittian register that any actions that serve the common good are constitutional. As Trump himself put it back in February, “He who saves his Country does not violate any Law.”
What Next?
I do not imagine any of the judges who currently sit on the United States Supreme Court will be citing Adrian Vermeule’s Common Good Constitutionalism anytime soon. Vermeule’s overall mode of thinking is in real tension with the FedSoc establishment, and the Federalist Society outlook still dominates the American conservative legal movement. But Emil Bove is hardly the only one on the right today who is happy to flirt with illiberal lawlessness, or with a “Prerogative State” adjacent to the more familiar “Normative” one. The New Right thinkers have been preparing the way now for almost a decade.
While it may still be too brazen—even for them—to draw up lists of loyal (or compromised) judges to fill a fully Trumpist judiciary, the New Right’s gradual ascendancy will continue as long as Trump and Vance remain in power. And in his second term, Trump is set to appoint over 100 more judges—judges who are likely to be even more extreme than those from the first.
Increasingly, Americans will be lucky to find people in the federal government, including in the courts, with the wherewithal to find constitutional limits where so many seem willing to look the other way—or, like Bove, simply to enforce the lawless whims of the sitting president.
Laura K. Field is a writer and political theorist in Washington, DC, and a senior advisor for the Illiberalism Studies Program at The George Washington University. Her book, Furious Minds: The Making of the MAGA New Right, will be published by Princeton University Press in November.
