Trump, McConnell, Roberts. That’s Not Rule of Law. It’s Rule by Law
The constitutional skids for Project 2025 have been greased by a Trumpian federal judiciary that is carrying out its own autocratic revolution
By Alex Aronson
When Péter Magyar emphatically ended the 16-year reign of Hungarian autocrat Viktor Orbán earlier this month, his message was clear: It’s time to clean house. “The regime is over,” Magyar declared as he called for a raft of senior-level resignations, including the presidents of the supreme court, the judicial council, the state audit office, the competition authority, and the media authority.
Magyar’s bold pronouncement reflects the insight that if he and his Tisza party are to deliver on their mandate to restore the rule of law to Hungary, it will first be necessary to purge the country’s governing institutions of infestations by the Orbán apparatchiks who helped Orbán “carr[y] out an autocratic revolution with exquisite legal precision.” As scholar and Contrarian contributor Kim Lane Scheppele has documented, Orbán’s success at constitutional manipulation through institutional capture made him the archetype for a new breed of “legalistic autocrat” — leaders who are “elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited.”
Much ink has been spilled illustrating how Trump’s second-term Project 2025 playbook for dismantling and weaponizing the executive branch borrows directly from Orbán’s model. Less appreciated is the extent to which, thanks to Trump’s first-term judicial confirmation efforts and those of Sen. Mitch McConnell (R-KY) and the Federalist Society, the constitutional skids for Project 2025 have been greased by a Trumpian federal judiciary that is carrying out its own autocratic revolution.
Just over a year into Trump’s second term, the impact is striking. Even as district court judges across the country have resoundingly rejected Trump’s unconstitutional overreach, the judges Trump appointed have been reliable rubber stamps, ruling for him in nearly 70 percent of cases. At the court of appeals level, where McConnell and Federalist Society judge-picker Leonard Leo did the bulk of their damage during Trump’s first term, the “rule of law” has, not surprisingly, devolved into bare party politics. Across 114 circuit court orders ruling on Trump’s second-term policies, Republican-appointed judges ruled for Trump fully 87 percent of the time, compared with his 78 percent loss rate before Democratic-appointed judges.
Sitting atop this decaying judicial infrastructure, the Roberts Supreme Court — itself deeply shaped by Trump’s three appointments and McConnell’s constitutional hardball — has emerged as Trump’s enabler-in-chief. Despite high-profile showdowns over Trump’s egregiously unconstitutional tariffs and his assault on birthright citizenship, the Roberts Court handed Trump sweeping immunity, ushered in his return to power, and has quietly deployed its shadow docket to greenlight Trump’s policies in over 84 percent of cases.
As in Orbán’s Hungary, then, a clear picture emerges of a captured judicial branch that is steadily dismantling by law the constitutional system it inherited. If we are to restore the rule of law in the United States, a housecleaning like the one Magyar has called for in Hungary will clearly be in order.
Yet even as we reckon with the broken justice system Trump and McConnell have locked in, the pipeline remains open — and the second wave is worse. The first Trump term produced judges vetted for right-wing ideology; this one demands personal loyalty to Trump. That shift — from Federalist Society orthodoxy to Trumpian fealty — now extends beyond the bench to U.S. Attorneys as well. The result is a dual threat to the rule of law: prosecutors who will weaponize the Justice Department against Trump’s enemies, and judges who will rubber-stamp their overreach. That’s not rule of law. It’s rule by law.
Case in point: The slate of Trump cronies currently under consideration by the Senate Judiciary Committee for confirmation as federal judges and U.S. Attorneys.
Consider the insurrectionists. Darin Smith, current interim U.S. Attorney for Wyoming and Trump’s nominee for the role, attended the Jan. 6, 2021, attack on our Capitol. Smith has made clear that he has no regrets, telling the Senate Judiciary Committee that he believes that the rioters were victims of “conditions resembling entrapment” created by unidentified “agitators.”
Similarly, Dan Bishop and Phillip Williams Jr., nominated to U.S. Attorney posts in the Middle District of North Carolina and the Northern District of Alabama, respectively, have their own records of Jan. 6 revisionism and election denial. Bishop, a former congressman who lost the North Carolina Attorney General’s race in 2024, voted against certifying the 2020 election and has advocated for criminally charging Manhattan District Attorney Alvin Bragg and former Special Counsel Jack Smith, among others who prosecuted Trump. Williams, for his part, called prosecutions of the Jan. 6 rioters “the Salem witch trials on a national scale” on his right-wing talk radio program—his day job until he was tapped to serve as an interim U.S. Attorney.
In Smith, Bishop, and Williams, Trump has nominated attorneys who have made clear that their primary professional commitment is to Donald Trump personally, not the American public or the Constitution. They have consistently attacked the people who have tried to hold Trump accountable, and they’re being handed the power to prosecute those people themselves.
We’ve already seen how this goes. The U.S. Attorneys who have so far passed Trump’s loyalty test have been staggeringly incompetent and shown egregious disregard for the rule of law. Alina Habba, Trump’s former personal lawyer who was unlawfully installed atop the U.S. Attorney’s Office in New Jersey, spent her tenure going after the state’s Democratic politicians, investigating the state’s governor and attorney general and bringing charges against Newark’s mayor and a sitting congresswoman.
Lindsey Halligan, another of Trump’s personal attorneys with no prosecutorial experience, took the helm in the Eastern District of Virginia after Trump forced out the career prosecutor who refused his personal command to indict former FBI Director James Comey and New York Attorney General Letitia James. Halligan dutifully followed orders, only to have a federal judge void both cases and a second judge order her to stop “masquerading” as U.S. Attorney — rulings the Department of Justice promptly ignored.
But installing crony U.S. attorneys is just one part of the plan. To make up for those attorneys’ ineptitude and have their sham prosecutions succeed, you also need friendly courts — judges whose orders you don’t have to defy. And despite Trump’s occasional spats with Leo, the judge-picking machinery Leo built remains aligned with the president’s ambitions.
See, for instance, Justin Smith, Trump’s latest nominee to the Eighth Circuit. Smith is deeply intertwined with Leo’s network, but he also has the president’s favorite credential — like Habba and Halligan, Smith served on Trump’s personal legal defense team. It’s a resume line that they share with Judge Emil Bove, Second Circuit nominee Matthew Schwartz, Acting Attorney General Todd Blanche, and Solicitor General John Sauer.
The very attorneys who have spent years protecting Trump from accountability are now charged with protecting us — or at least, under a normal government, that’s what their mission would be. Under the Trump regime, their job description is unchanged from their time as his personal attorneys.
For every nominee in this slate that the Senate confirms, we will find ourselves falling deeper into a justice system in which federal prosecutors’ role is to punish the president’s personal enemies and federal judges’ role is to rubber-stamp the punishment.
Though the Senate cannot easily undo what Trump’s first term and Leo’s dark money have already locked in, it can refuse to confirm nominees who would push deeper into a Trumpian legalistic autocracy. It should start by rejecting these nominees.
Alex Aronson is executive director of Court Accountability, which you can find on Substack here.
Most of what we are experiencing now stems from the Roberts Star Chamber's decision in Citizens United. It gave radical right wing oligarchs free rein in buying elections and gaslighting the electorate. Now that said oligarchs are successfully buying up all the media outlets, the deck is truly stacked against preserving our democracy.
"As in Orbán’s Hungary, then, a clear picture emerges of a captured judicial branch that is steadily dismantling by law the constitutional system it inherited. If we are to restore the rule of law in the United States, a housecleaning like the one Magyar has called for in Hungary will clearly be in order."
Mr. Aronson couldn't have said it better, though there is a major problem involved reining in the supreme court, calling for accountability and transparency - lifetime appointments. Lower courts have been doing a remarkable job of upholding democracy and the constitution. Appeals to the supreme court frequently get reversed.