How the election will shape the Supreme Court
Correction (9th August 2024): An earlier version of this article said Franklin Roosevelt seated a “full complement of nine judges”. He did make nine appointments, but two were to a single seat and another was to elevate Harlan Stone from associate justice to chief.
IN a speech in Texas on July 29th President Joe Biden called for major changes to America’s highest court: term limits for the justices and an enforceable ethics code, plus a constitutional amendment scuttling the court’s recent decision broadly shielding former presidents from criminal prosecution. Kamala Harris, his vice-president and would-be successor, quickly endorsed the proposals. But Mike Johnson, the Republican speaker of the House of Representatives, accurately declared the plans “dead on arrival”. Republicans are disinclined to tinker with a Supreme Court delivering conservative victories. And the requisites for constitutional amendments—supermajorities of the states and in both houses of Congress—remain hopelessly out of reach.
Still, by highlighting the “dangerous and extreme decisions” emanating from the Supreme Court, Mr Biden is turning voters’ attention to a potent issue. Reforms may be unrealistic for now. But the shape of the court may turn on who sits in the Oval Office come January.
Over his four terms Franklin Roosevelt managed to make nine Supreme Court appointments. Dwight Eisenhower, in two terms, seated five justices. If Donald Trump retakes the White House he could join a small club of presidents who pull off the legacy-shaping accomplishment of installing a majority of sitting justices.
Mr Trump has already left a deep imprint on the court. Each of his three appointees—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—shifted it further to the right. Justice Barrett’s nomination to succeed Ruth Bader Ginsburg anchored a six-justice majority that has brought sweeping changes to American law, from guns to religious liberty to abortion.
If the Republicans recapture the presidency and also win back the Senate, in a second term Mr Trump could fill vacancies without undue difficulty. With the demise of the filibuster rule for Supreme Court nominees in 2017, little would stand in his way should another seat or two open up.
Who might go? The two oldest justices—Samuel Alito, 74, and Clarence Thomas, 76—would surely stay should Mr Trump lose in November, to keep the court conservative. But they could be ready to retire if he wins. They have attracted scrutiny for accepting gifts from billionaires and for their spouses’ sympathy with the “stop the steal” movement that culminated in the attack on the Capitol on January 6th 2021. These appointees of George W. Bush and George H.W. Bush (respectively), not Mr Trump’s trio of justices, are the most MAGA of the lot. Installing two justices in their 40s or early 50s could solidify the Supreme Court’s conservative tilt for decades.
When he ran for president in 2016 Mr Trump released a list of potential nominees vetted by the Federalist Society, the seat of the conservative legal movement. Yet he seems to have soured on Leonard Leo, the society’s co-chairman. They are said not to have spoken since 2020, when Mr Trump was aghast that Leo-recommended lawyers (and his three appointees to the Supreme Court) refused to countenance his claims of election fraud. Steve Vladeck of Georgetown University reckons a “tighter network of folks already in the Trump orbit” will have his ear this time, and one is Mike Davis, the combative lawyer who shepherded the nominations of Neil Gorsuch and Brett Kavanaugh for the Senate Judiciary Committee.
Taking the Fifth
Some of Mr Trump’s most likely picks sit on the Fifth Circuit Court of Appeals, America’s most conservative court. Mr Trump gravitates towards judges with sterling educational pedigrees. Judge James Ho’s degrees from Stanford and the University of Chicago—along with his jurisprudential bombast, seen in his idiosyncratic arguments in abortion cases—may make him a contender. Alex Aronson, the founder of Court Accountability, an advocacy organisation, is among those who consider Judge Ho a “front-runner”. But David Lat, a legal commentator, notes that Judge Ho is a “lightning rod” who could repel some moderates.
Two more judges on the Fifth Circuit could be up for a promotion. Mr Aronson calls Judge Andrew Oldham “lower-key and more buttoned-up” than Judge Ho but “every bit as partisan”; he clerked for Justice Alito and could be a tempting pick to succeed his old boss. Judge Stuart Kyle Duncan is another “MAGA bomb-thrower” to watch, Mr Aronson says, as is Lawrence VanDyke, Mr Trump’s nominee to the Ninth Circuit Court of Appeals.
An unconventional pick could be Jonathan Mitchell, who successfully argued at the Supreme Court that Mr Trump should remain on Colorado’s primary ballot despite the 14th Amendment’s bar on oath-breaking insurrectionists becoming president. Mr Mitchell has never served as a judge but he was the architect of Senate Bill 8, which in effect ended abortion rights in Texas nine months before Roe v Wade was overturned. Aileen Cannon, the district-court judge in Mr Trump’s classified-documents case, earned praise from the former president when she threw out those charges. She could be up for promotion to the 11th Circuit Court of Appeals as a stepping-stone to a still higher perch.
Not all Mr Trump’s likely short-listers hail from the jurisprudential fringes. Three women he installed on circuit courts would be choices closer to the mould of his first-term picks: Neomi Rao on the DC Circuit, aged 51, a former clerk for Justice Thomas; Allison Rushing on the Fourth Circuit, another Thomas clerk and only 42; and Britt Grant on the 11th (aged 46).
Ms Harris’s roster of potential picks, should she win, seems more straightforward. Leondra Kruger is a 47-year-old justice on the state supreme court of California and was an excellent advocate at the Supreme Court in a dozen appearances when she worked in Barack Obama’s Department of Justice. Judge Julianna Michelle Childs of the DC Circuit, a contender in 2022 to replace Justice Stephen Breyer, could reappear on Ms Harris’s list.
A few of President Biden’s appointees to the lower courts could be attractive picks. Two former voting-rights lawyers, Judges Dale Ho of the southern district of New York and Myrna Pérez of the Second Circuit, would counter efforts to clip the wings of the Voting Rights Act of 1965. Judge Alison Nathan of the Second Circuit could be America’s first openly gay justice. Lucy Koh (Ninth Circuit), John Lee (Seventh Circuit) or Sri Srinivasan (DC Circuit) could be the first Asian-American on the court. Brad Garcia of the DC Circuit, which produces the most Supreme Court justices (including four of the current nine), is Latino, a former clerk to Justice Elena Kagan and, at 38, could serve for decades.
Yet all these prospects would struggle to be confirmed if the Democrats win the White House but lose the Senate—an outcome that may lock Justices Elena Kagan (64) and Sonia Sotomayor (70), Barack Obama’s appointees, into their seats until at least 2029. Mr Trump’s reshaping of the court was made possible by Republican intransigence in February 2016 when, hours after Antonin Scalia (an arch-conservative justice) died, Mitch McConnell, the majority leader, declared that his seat would remain open until after that year’s presidential election. There is no reason to think Republicans will stop playing hardball. ■
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