1 week Ago
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com . Want to purchase today’s print edition? Here’s a map of single-copy locations. Sign up for our daily newsletter here Donald Trump’s decisive win this month has some important implications for the Supreme Court and the law.
In any presidential election, the Supreme Court is on the ballot. Presidents serve terms of four years and their policy achievements can be undone by their successors. But the justices a president appoints enjoy lifetime service and so can extend the president’s influence for decades.
Trump’s most significant and most enduring achievement in his first term of office was his appointment of three justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. These three have impacted the work of the court already and will continue to do so for many years to come. Had Hilary Clinton won the 2016 election and filled three seats, the court today would look quite different.
Some recent high-profile rulings — including Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and Planned Parenthood v.
Casey to hold there is no constitutional right to an abortion — would not have occurred. In his second term, Trump will appoint at least one and perhaps as many as three justices. If he names two, a majority of the court will consist of Trump appointees for decades to come.
That’s a big deal. President Joe Biden will soon leave office having made just one appointment to the court, Ketanji Brown Jackson; in his two terms, President Barack Obama made just two appointments, Sonia Sotomayor and Elena Kagan. With Republicans in control of the Senate, Trump nominees will sail through the confirmation process.
The justices Trump appoints in his second term are likely to be similar in key respects to the three he appointed in his first. They will be young and highly credentialed. They will be committed to originalism as the proper method of constitutional interpretation.
They will be skeptical of federal power and protective of the states but also in favor of a muscular presidency. They will keep federal agencies in check, advance a robust understanding of First Amendment protections for speech and religion, and further curtail race-based affirmative-action programs. Many Democrats criticized Trump in his first term for relying on the advice of the Federalist Society in choosing justices.
But we should welcome that strategy. All three of the justices Trump appointed are mainstream jurists. To be sure, they would not have been appointed by a Democratic president.
But any Republican president would consider all three to be suitable members of the Supreme Court. Consider the alternative. Had Trump relied on just his own instincts, we might today instead have justices Rudy Giuliani, John Eastman and Cleta Mitchell, three lawyers close to Trump, each with a history of making spurious claims of electoral fraud.
On the near horizon, Trump’s win this month means that the several criminal cases against him are likely to disappear. Special Counsel Jack Smith, whose federal cases were already undercut by the Supreme Court’s July ruling on presidential immunity, is likely to seek dismissal even before Trump takes office in January. Even before the election, there was a good chance that Trump would prevail in his appeal of his conviction in the New York hush-money case because it rests on a dubious application of state law; there is little likelihood now that he will face any serious punishment.
Georgia prosecutor Fanni Willis, who won re-election this month, is likely to drop Trump from her multi-defendant state-election interference case or postpone the prosecution until after Trump leaves office in 2029. If she doesn’t, the Supreme Court will make her. In the end, though, it is what we can’t predict that will matter most.
The first Trump presidency generated a long list of novel legal issues, many of which reached the Supreme Court. Trump’s current bold agenda and the opposition it will produce will mean many more lawsuits in the next four years. Whether the justices like it or not, they will play a central role in determining the direction the nation takes.
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