After Trump Victory, SCOTUS is Safe for a Generation

During his first term, Donald Trump established a solid constitutional conservative majority on the Supreme Court. During his second term, he may solidify that majority for decades.

Prior to Trump’s first victory in 2016, Justices Clarence Thomas and Samuel Alito were the only reliable constitutionalists sitting on the High Court. It seemed that the far-left progressive ideology of “living constitutionalism” embodied by the likes of Sonia Sotomayor and Ruth Bader Ginsburg had all the momentum and was driving many of the Court’s decisions.

If Hillary Clinton had ascended to the Oval Office eight years ago, Merrick Garland was waiting in the wings to fill the seat of the late Justice Antonin Scalia. A President Hillary Clinton would also likely have appointed left-wing judges to replace Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer—giving the progressive movement a formidable 6-3 majority with two of the three Republican-appointed justices nearing retirement age.

In this alternate reality, revered liberal legal precedents like Roe v. Wade and the “Chevron deference” doctrine would still be on the books—and social and religious conservatives would be facing formidable legal, cultural, and political headwinds both in the courtroom and in the public square.

Instead, Trump’s victory led to three game-changing first term appointments—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—who handed legal conservatives and constitutionalists a Court majority, and along with it a wide and ever-expanding array of legal and cultural victories.

Now, with Trump gearing up to serve another four years in the White House, he could very well have the opportunity to fill at least two more seats. Justice Samuel Alito, appointed by President George W. Bush, is 74 years old, and Justice Clarence Thomas, appointed by President George H.W. Bush, is 76 years old.

While both men may elect to continue serving beyond Trump’s four years in office, history says that would be unlikely. According to a study published by the Harvard Journal of Law and Public Policy, the average age at which justices left the Court between 1971 and 2006 was 78.7 years old. A justice serving as long as Ruth Bader Ginsburg, who died in office at the age of 87, is a rarity.

While Trump’s replacing of two conservative justices won’t alter the ideological makeup of the court, appointing two young constitutionalists could solidify the existing majority of conservative-appointed justices for much longer. Brett Kavanaugh is 59, Gorsuch is 57, and Barrett is 52. It is entirely possible that, come 2028, a majority of the justices could be constitutionalists under the age of 65 all appointed by Trump.

Among the judges speculated to be on Trump’s shortlist to fill possible Supreme Court vacancies are Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit, a conservative stalwart known for boycotting law clerks from Yale Law School and making a constitutional case against birthright citizenship; Judge Stuart Kyle Duncan, also of the U.S. Court of Appeals for the Fifth Circuit, who notably refused to refer to a “transgender” inmate by their preferred pronouns; and Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit, a longtime favorite of the conservative legal movement.

Given the current Court’s landmark decisions made possible by Trump appointees, the prospect of adding more constitutionalist judges is an enticing one indeed for the conservative movement.

The Court’s most consequential ruling since Trump left office, of course, came on June 24, 2022, when a 5-4 majority overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. In a historic victory for unborn children, the rule of law, and judicial independence, Dobbs established that there is no constitutional right to abortion, returning the issue to the people and their elected representatives in the state legislatures and Congress.

At the conclusion of its term in 2023, the Court handed down Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, which ruled that affirmative action in college admissions is unconstitutional—a long-time goal of the conservative legal movement and a major setback for the left’s identity politics apparatus.

This year, the Court also dealt a fatal blow to the administrative state in Loper Bright Enterprises v. Raimondo, in which the justices struck down the so-called “Chevron deference” doctrine, which effectively handed unelected bureaucrats the power to essentially make law while bypassing Congress. This decision dealt a significant blow to the Deep State.

In Trump v. United States, another monumental decision handed down this year, the Court also dealt a major blow to the left’s lawfare against President Trump – helping ensure that the 2024 election was decided by voters at the ballot box, and not by judges in a courtroom.

The Court has also issued landmark decisions that have upheld religious liberty rights, Second Amendment rights, and the right to public safety—including the right of cities to prohibit homeless people from sleeping in public—among countless other conservative wins.

And over the last four years, the Court’s constitutionalist majority has served as the main bulwark against the Biden administration’s brazen political and social overreaches—hindering the executive branch from promoting far-left fanaticism that imperils American families and communities.

For conservatives, needless to say, it is painstakingly difficult to imagine what life in America would have looked like had Donald Trump not won the 2016 election.

Regardless of whether or not Trump ultimately has an opportunity to fill vacancies on the High Court in the coming years, the body is almost certain to add to its impressive repertoire of conservative legal wins. And though the Democrat Party and the corporate media will inevitably continue to loudly oppose the Court’s constitutionalist majority, every American who cares about the rule of law, the separation of powers, and the American constitutional order should be optimistic as Trump prepares to swear the oath of office again on January 20.

Aaron Flanigan is the pen name of a writer in Washington, D.C.