No other American president has faced as much hostile, ideologically driven judicial warfare as has President Donald Trump. But there was a president who also faced a slew of new, hostile judges appointed by his predecessor—and his example provides an interesting historical lesson.
That prior president was Thomas Jefferson, the third president of the United States and the author of the Declaration of Independence.
Today, Trump’s administration faces an unprecedented number of unlawful nationwide injunctions from federal judges who apparently believe they are anointed and not appointed.
Those judges, the overwhelming majority of whom are Democrat appointees, are clearly carrying on the political fight liberals lost in the November 2024 election—a blatant attempt to prevent Trump from wielding his constitutional authority to implement the policies that 77 million American voters approved.
Even though there are almost 700 district court judges, 35 of 40 injunctions issued as of May 15 came “from the same five judicial districts,” Solicitor General John Sauer pointed out to the Supreme Court in oral arguments over the nationwide injunctions issued in the birthright citizen cases. Even more injunctions have been issued since then.
Those include injunctions from judges like Massachusetts District Court Judge Brian Murphy, whose order against the removal of criminal aliens to third countries was recently stayed by the Supreme Court.
Murphy was rushed through the Senate by Chuck Schumer in the waning days of the Biden administration, with his nomination barely confirmed on Dec. 2, 2024, in a 47-45 vote. Even Susan Collins of Maine, arguably the most liberal Republican in the Senate, voted against Murphy because he is so radical.
This may sound eerily similar to the events preceding Jefferson’s inauguration on March 4, 1801.
As students of American history know, Thomas Jefferson defeated John Adams’ attempt to win a second term in a bitter race that resembled the slugfest we have seen in the last two presidential elections. Because Jefferson and Aaron Burr had won the same number of electoral college votes, with Adams in third place, the House of Representatives decided the winner, picking Jefferson as the new president.
Remarkably, many of the issues in that campaign are similar to those of today, with Adams and Jefferson fighting over everything from government size to taxes to the weaponization of government. Adams’ Federalists resembled today’s Democrat Party, while the Jeffersonian Republicans resembled the Republicans of today, including Trump.
What helped sink Adams and the Federalists in their reelection efforts was their passage of the Alien and Sedition Acts, which abridged the First Amendment rights of Americans.
The Sedition Act in particular was used to prosecute critics of the Adams administration. As Larry Schweikart and Michael Allen outline in “A Patriot’s History of the United States,” even though the language of the act was “rather vague,” Federalist judges understood it. Under the Act, they arrested, tried, convicted, and jailed or fined twenty-five people, mostly Republican newspaper editors, including Matthew Lyon, a jailed Republican congressman who won his reelection while still behind bars.”
Doesn’t this remind you of the prior administration’s tactics to pressure and coerce social media platforms to censor the opinions of their critics and anyone who disagreed with their view of the world?
Or how about this? According to Schweikart and Allen:
The Republicans had decisively won both the legislative and executive branches of government in November, leaving Adams only one hope for slowing down their agenda: judicial appointments. His unreasonable fear and hatred of the Jeffersonians led him to take a step that, although constitutional, nevertheless directly defied the will of the voters. In February 1801, Adams sent a new judiciary act to the lame-duck Congress, and it passed, creating approximately five dozen new federal judgeships at all levels, from federal circuit and district courts to justices of the peace. Adams then proceeded to commission ardent Federalists to each of these lifetime posts—a process so time consuming that the president was busy signing commissions into the midnight hours of his last day in office.
These judges were promptly confirmed by the lame-duck Senate, the same way Schumer’s lame-duck Senate confirmed 22 federal judges between Election Day and the end of the 117th Congress. That’s almost two dozen judges in less than two months—even despite the Senate’s infamous two-day work week.
The Democrat-controlled Senate managed to give Joe Biden the record for the most federal judges confirmed in a single four-year term of any president, with the exception of Jimmy Carter, who only surpasses Biden because Congress created 150 new judgeships during his term.
Biden’s judges, along with the judges confirmed during Barack Obama’s two terms, constitute more than half of all district court judges in the nation, and many of them appear to be radical, left-wing ideologues.
What could Jefferson do about the lifetime federal judicial appointees who, as Schweikart and Allen detail, “remained staunchly Federalist”?
Impeaching them would have proven nearly impossible; that’s a difficult procedural process requiring a two-thirds vote in the Senate for conviction—assuming one can even find legitimate grounds for removal.
But Jefferson found a different solution.
Under Article III, all federal courts, with the exception of the Supreme Court, are creations of Congress, as proven by the Judiciary Act of 1801, which Adams used to insert his political allies into new federal judgeships.
Jefferson’s allies in Congress amended Adams’ 1801 Judiciary Act to eliminate the judicial seats of 33 Federalist judges, essentially removing them without impeachment. Majority votes in the House and Senate and the stroke of a pen helped remedy Jefferson’s problem—no impeachment required.
I’m not proposing that the same remedy be used today to deal with the rogue judge problem. In any event, there’s no doubt that remedy couldn’t even get by a filibuster in the Senate.
The House of Representatives has already passed its own proposed solution, the No Rogue Rulings Act, to place restrictions on nationwide injunctions, which now comes before the Senate. Not only that, the highest court in the land may itself act to restrain these judges and their misconduct.
Nonetheless, looking back at our own history can sometimes prove both informative and instructive.
Hans von Spakovsky is the manager of the Election Law Reform Initiative and a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Reprinted with Permission from The Daily Signal – By Hans von Spakovsky
The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.
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