Legal expert: Why SCOTUS will 'likely have a Trump majority' by 2029

11 February

One-third of the U.S. Supreme Court consists of Donald Trump appointees: Justices Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch were all appointed during Trump's first term, and he may have a chance to appoint even more justices during his second term.

Former President Joe Biden, in contrast, only appointed one justice: Ketanji Brown Jackson, which didn't alter the High Court's 6-3 GOP-appointed right-wing supermajority because Jackson replaced retired former Justice Stephen Breyer (a Bill Clinton appointee).

Progressive legal expert Elie Mystal examines Trump's influence on the High Court in an article published by The Nation on February 11 — an influence that, he stresses, is likely to increase during his second term.

"Donald Trump's first term as president gave the Republicans control over the most dangerous body of the most dangerous branch of government: the Supreme Court," explains Mystal, a frequent legal analyst on MSNBC. "With the help of Senate majority leader Mitch McConnell, along with timely retirements and untimely deaths, Trump was able to secure a 6-3 hard-right majority on the Court and use it to make the Republicans' least-popular policy dreams come true. In the brief years since, the Court has undermined labor rights, stripped back voting rights, and reduced pregnant people to the status of second-class citizens whose bodies can be controlled by Republican state legislatures eager to use them for labor without compensation."

But the worst, Mystal warns, may be yet to come, because "Trump's reelection gives the Republicans a chance to do something even more extreme with the Supreme Court: to make their judicial control permanent."

"Backed by a healthy majority in the Senate," the attorney notes, "the Republicans can swap out their oldest justices for younger blood, entrenching their dystopian view that the Constitution confers unlimited rights to gun owners and nobody else. And if the feckless gods decree that one of the Democratic justices should succumb to the ultimate law of nature during the next four years, the Republicans will be able to appoint their replacement as well, giving them a 7–2 majority."

Mystal continues, "In the case of either of these events, the Supreme Court will not just have a Republican majority by 2029, when Trump leaves office; it will likely have a Trump majority. Trump is now poised to become the first president since Franklin Delano Roosevelt to have appointed a majority of the justices on the Supreme Court. His justices will outlive him, and their impact on law and policy will outlast whatever temporary tragedies Trump brings forth through his executive orders."

Mystal notes that if Justice Clarence Thomas, now 76, or Justice Samuel Alito, now 74, were to retire, Trump would likely nominate someone younger who might spend 20, 30 or more years on the Court. And he adds that some potential far-right nominees, should a vacancy on the Court become available, include Judges Andrew Oldham, James Ho and Neomi Rao. Another is Judge Aileen Cannon, the federal appointee who was assigned to former special counsel Jack Smith's classified documents case and eventually dismissed it.

"For my part," Mystal comments, "I hope Aileen Cannon gets nominated. Yes, I'm serious. Of the poisons arrayed before me, I’ll choose the mediocre partisan hack over the experienced and well-trained evildoer."

Elie Mystal's full article for The Nation is available at this link.

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