President-elect Donald Trump’s second term could help make him one of the most consequential presidents for the U.S. Supreme Court by solidifying a long-lasting originalist majority.
Although Democrats have criticized the justices in recent months, the 2024 elections may have stripped their party of the power it would need to block Trump’s nominees and implement reforms to stunt conservatives’ influence on the court.
Republicans are projected to take the U.S. Senate, offering at least a two-year window for Trump to appoint new conservative jurists to the highest court should any of the sitting justices announce retirement. Neither of the two most senior justices, Clarence Thomas, who is 76 and joined the court in 1991, and Samuel Alito, who is 74 and joined in 2006, have announced plans to retire.
“No one other than Justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed, and, frankly, just crass,” Federalist Society Chairman Leonard Leo said.
If Trump is later tasked with appointing two justices, he could be the first president since President Dwight D. Eisenhower to have five of his nominees sit on the nation’s highest court.
Changes to Precedent
The court, led by Chief Justice John Roberts, has been described as incrementalist, but some of its recent decisions have raised questions about the stability of longstanding precedents. Trump’s nominees—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—have already contributed to major shifts in American law, starting with their votes to overturn Roe v. Wade in 2022.Conservatives have touted this decision and Dobbs as following an originalist approach, or one that seeks to follow the Constitution’s original meaning. Such an approach might continue if Trump selects justices from the long list of judges appointed to federal courts during his first term in office.
Judicial Crisis Network President Carrie Severino told The Epoch Times that if Trump wanted to appoint more originalists to the Supreme Court, he wouldn’t have to “look any farther than the appellate judges” that he appointed during his first term.
“If he picks from that short list he himself has created, then I think we’re going to have an awesome continuation of the originalist approach to the Constitution,” said Severino, a former Thomas clerk.
Civil Liberties
The Supreme Court’s recent decisions have been viewed by both sides of the ideological spectrum as utilizing originalism and textualism, or trying to adhere to the plain language of American laws, after decades of different approaches.
“After most of the 20th century spent with a very liberal court, we actually have a majority of originalists in the court,” Severino said during a press call this summer.
Overturning Roe raised questions about a whole body of law, known as “substantive due process,” which stems from the 14th Amendment’s due process clause.
That body of law informed the court’s decision in a series of other cases, like Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges, which struck down state laws on birth control, sodomy, and marriage respectively. Following Dobbs, left-leaning voices worried that the more conservative Supreme Court would eventually overturn those cases.
Thomas’s concurring opinion went further in describing substantive due process as “an oxymoron” and said that the court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
Former federal prosecutor Neama Rahmani told The Epoch Times, “We may see the justices continue to chip away at civil rights and substantive due process.”
A ‘MAGA Supreme Court’?
Based on decisions by Trump’s already-appointed justices, it’s questionable whether a court transformed by the president-elect would deliver consistent wins for conservatives’ political causes.Like others, the American Civil Liberties Union (ACLU) criticized the court’s immunity decision, which granted presidents various levels of immunity from criminal prosecution.
Besides its rulings on immunity and abortion, the court ruled in favor of gun rights advocates this year by effectively allowing bump stocks and, in 2022, by clarifying that firearm restrictions must follow the nation’s history and tradition.
Trump himself has praised the justices but expressed disagreement as well, such as when he said the court “really let us down” after it declined to take up a 2020 election-related case from Texas. He also publicly clashed with Roberts, who said in 2018, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
Evolving Originalism
Besides demonstrating an interest in economic deregulation, Trump also said his second term would see regulations related to gender—specifically opposing so-called gender-affirming care for minors. Those regulations will likely encounter lawsuits with left-leaning groups citing Gorsuch’s controversial majority opinion in Bostock v. Clayton County.Gorsuch, whose voting aligned most with Thomas’s last term, joined Roberts in ruling that firing someone on the basis of sexual orientation or gender identity was a form of sex-based discrimination because the actions wouldn’t have been made “but for” the individual’s sex.
That reasoning has been used by lower courts to support so-called left-leaning interests on the issue of gender, including the idea that states can’t exclude adults from receiving transgender procedures under government insurance programs.
What originalism and textualism mean in practice may be evolving due at least in part to the influence of Trump-appointed justices. In his dissent, Alito said “no one should be fooled” by Gorsuch’s “attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation.”
Thomas’s approach to originalism has encountered resistance among many on the court. He was the only justice to say in June that his originalist opinion in Bruen protected domestic abusers’ rights to own firearms.
Another decision rejecting a crude, Trump-related trademark saw the justices similarly differing over how to apply legal history despite each agreeing with the ultimate outcome of the case.
In a concurrence joined by liberal-leaning justices, Barrett said Thomas’s approach was “wrong twice over” and suggested that it overemphasized the role of historical comparison. Thomas had argued that a “firm grounding in traditional trademark law is sufficient to justify the content-based trademark restriction here.”
