Conservatives spent years reshaping the federal judiciary, but dozens of injunctions blocking the Trump administration’s agenda are leaving Republicans griping about a federal judiciary they now say is chock-full of judicial activists.
In their rush to remove any obstacle in the way of President Donald Trump’s agenda, Republicans are taking a scorched-earth approach toward the branch they invested decades’ worth of political capital in. They’re proposing legislation to curb the power of the judicial branch, most recently focusing their energy on trying to limit judges’ ability to issue nationwide injunctions and finding other ways to attack the legitimacy of the courts.
The proposals have an uphill climb to make it through the Senate. But legal experts have been surprised and puzzled by the newfound level of ire toward the judicial branch that Republicans long revered and sought to stack with allies.
“The question of their power to select judges is one thing, and Trump was, in fact, enormously successful. Now, to sort of carve out jurisdiction because they don’t like what the judges have been doing, doesn’t make any sense,” Nancy Gertner, a former district judge appointed by former President Bill Clinton, told NOTUS. She added that while nationwide injunctions, a term used to describe relief granted by a judge that extends beyond the plaintiffs or parties of a suit, have stalled both Democratic and Republican executive actions, the issue of jurisdiction can be resolved without “taking a sledgehammer to the court system.”
Perhaps most surprising for some of these observers is that it’s under Trump’s watch that Republicans are trying to chip away at the judicial branch’s power. Trump filled 173 district court vacancies in his first term, on top of 53 vacancies in appeals courts and three in the Supreme Court — all with lifelong appointments, leaving a decades-long imprint on the federal judiciary. It’s a track record that conservatives rooted for and still celebrate.
Just last month, Leonard Leo, a co-chair of the Federalist Society, declared victory over the courts in a podcast interview with The Free Press, acknowledging the leverage that those appointments granted conservatives.
“What [Trump] did in transforming the federal courts is probably the most consequential thing he will ever do as a public official. That will last 40 years, plus,” Leo said. “If there is a rollback of the administrative state and of federal power, it won’t be because of DOGE. … That will all be in the hands of jurists that he appointed to the bench.”
But now, faced with injunctions from at least 39 different judges appointed by five separate presidents, there’s a growing number of conservatives who say that these judges are overstepping and abusing their constitutional authority and that Congress should do something about it. And they’re trying — Sen. Chuck Grassley proposed a bill to limit the injunctions district courts can issue, decrying them as “a favorite tool for those seeking to obstruct Mr. Trump’s agenda.”
“The conservative complaint is that too many of the district judges ruling on challenges to administration actions this second term are going too far by intruding on presidential prerogative,” Ilya Shapiro, an attorney and director of constitutional studies at the conservative Manhattan Institute, told NOTUS in a statement. “I wish the Supreme Court would step in to direct lower courts more on these issues … but reform proposals like Judiciary Chairman Grassley’s bill are an appropriate response in the absence of such guidance.”
Elon Musk routinely suggests removing judges and even contributed money to the campaigns of lawmakers who proposed articles of impeachment. Trump name-checked and called for the removal of one judge who blocked the administration’s deportation flights of Venezuelan migrants, arguing he was an “agitator and troublemaker” (after which Chief Justice John Roberts publicly weighed in to suggest that the Trump administration stick to appealing judges’ decisions instead).
Despite Roberts’ statement, some Republicans are still gunning for impeachment even as they line up behind bills like Grassley’s. Rep. Andy Ogles has proudly displayed a “wanted” poster outside his office with the names and photos of judges who have made unfavorable rulings against Trump.
Most judges who have issued forms of nationwide relief aren’t Trump appointees, but there are exceptions, like the district court judge who ordered the administration to unfreeze billions of dollars of infrastructure and climate funding last week.
“You can’t have 677 judges thinking they’re president and issuing these nationwide injunctions, for goodness’ sake,” Judiciary Committee Chairman Jim Jordan told NOTUS.
Some GOP lawmakers have proposed legislation limiting the reach of injunctive relief from lower courts altogether, like Grassley, who did not respond to a request for comment. A similar proposal led by Rep. Darrell Issa passed the House on April 9.
“The vast majority of these judges are Democrats, but leaving the politics aside, every one of them is making a decision in excess of their jurisdiction, and that’s why the rogue judges bill is necessary,” Issa told NOTUS.
Democrats have previously also cried foul about these injunctions. The Biden administration faced its fair share, and when a single-judge district in Texas issued an order blocking the Food and Drug Administration’s approval of an abortion pill in 2023, Democratic Sen. Mazie Hirono introduced a bill that would make the district court in Washington, D.C., the only one able to issue nationwide relief.
While some Republicans acknowledge that limiting the relief district courts can issue could hurt their ability to rein in a future Democratic administration, some argue that they don’t have much to lose, since they see the federal judiciary as inherently more friendly to those administrations anyway.
“It’s the Democrats that have more to lose in terms of this entire discussion, when you force the judiciary back into the framework that it’s supposed to be in,” Rep. Harriet Hageman, a Judiciary Committee member, told NOTUS. “The Democrats, in fact, attempted to capture the judiciary more than even the Republicans, because the Democrats realize that most of their policies are so unpopular that they can’t get them through the regular electoral process.”
Much of Trump’s success in having such an outsized influence over the judiciary is owed to former Majority Leader Mitch McConnell, who, after blocking President Barack Obama’s Supreme Court pick in 2016, capitalized on a Republican president’s election to fill every vacancy in the courts with young, conservative jurists. Pew Research estimates 27% of all active federal judges are Trump appointees. With the Senate and the presidency, Democrats were able to mirror that success — Biden’s picks also make up 27%.
Still, Republicans largely don’t see their attacks on the judiciary as an encroachment on or a dismissal of their own success in gaining so much ground in the courts.
“It’s still hard. It’s not like he changed every judge. I mean, he was very successful. Joe Biden has been relatively successful in the time that he was in as well, though, so there are … many judges who are very left,” Rep. Jeff Van Drew told NOTUS. “There’s still plenty of folks that are very, very partisan, political, on the other side, that will do everything they can to upend anything he wants to change.”
Sen. Josh Hawley told NOTUS that the injunctions are “a continuation of lawfare” from the judiciary that Trump faced in his first term.
“These are never-Trump types, for the most part. And they’ve got the power — they think they have the power — to do nationwide injunctions,” Hawley said. “If one district court judge can issue an injunction to the nation, then you only need one … it doesn’t matter what the overall numbers are.”
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Emily Kennard is a NOTUS reporter and an Allbritton Journalism Institute fellow.