Elie Mystal: How Trump Could Remake the Supreme Court for a Generation

I’m not to worried about TROs and injunctions from federal district court judges.

New York Times:

“In the shambling Democratic response to the onslaught of changes wrought by President Trump in the first weeks of his second term, there has been one bright spot. Democrats control the attorney general’s office in 22 states, and they have filed the most important — and, so far, most successful — cases against controversial Trump administration initiatives.

Simple necessity has led Democrats, who are shut out of power in Washington, to rely on their attorneys general, but this strategy has its limits. Even these initial victories face uncertain futures in a federal judiciary dominated by Republican appointees, and, more to the point, liberals have often placed undue emphasis on achieving political change through the courts. …”

Regime change happens in America when the federal courts are remade and ratify the governing ideology of an ascendant faction. The best example of this is New Deal liberalism.

The Nation:

“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. 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. …

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. …”

Lincoln and the Republicans also remade the federal courts, but the Supreme Court ended up paving the way to segregation. The courts in those days were more interested in corporate personhood.

Jacobin:

“Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and “packed” the court, adding an additional justice in 1863. More fundamentally, though, they simply ignored the proslavery precedents established in the 1850s. In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories — a direct violation of the majority ruling in Dred Scott. The court meekly acquiesced, recognizing that its political power was long since broken.

As the legal historian Charles Warren later lamented, Republicans’ popular assault on the court crippled the institution for more than a decade: “During neither the Civil War nor the period of Reconstruction,” Warren wrote, “did the Supreme Court play anything like its due role of supervision, with the result that during one period the military powers of the President underwent undue expansion, and during the other the legislative powers of Congress. The Court itself was conscious of its weakness.?.?.?. The loss of confidence in the Court was due not merely to the Court’s decision but to the false and malignant criticisms and portrayals of the Court which were spread widely through the North by influential newspapers . …”

Warren’s point, in other words, is that the greatest democratic expansion in US political history — the era of emancipation and Reconstruction — demanded a direct political attack on the power of the Supreme Court. Nor is it a coincidence that the court, as it began to recover its strength in the 1870s, led the reactionary attack on this democratic project. …

In some ways, the Left today shares the position of antislavery forces in the 1850s. …”

The Left today actually resembles previous losers in American history.

The Supreme Court already has a 6-3 Republican majority and Trump will have four years to replace Thomas, Alito and whoever retires on the liberal side. If Republicans retain the Senate in 2026, which is likely, he will have four more years to replace district and appellate court judges too.

Note: If Vance wins the 2028 election, which given the way he is going and who he would be up against seems likely, it could be a very, very long night for the Left.