A panel of Donald Trump-appointed judges issued a ruling Oct. 25 that an election law expert called “bonkers.” The appellate judges said that a Mississippi law counting ballots postmarked by Election Day but arriving afterward violated federal law.
The 5th U.S. Circuit Court of Appeals panel didn’t put the ruling into immediate effect for this election; it sent the case back to a lower court for further proceedings. But whatever comes of the decision, it carries a lesson heading into Election Day: The courts are on the ballot.
During his presidency, Trump appointed more than 200 federal judges, including half the high court’s six-justice Republican-appointed majority: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Among the other judges he appointed are the ones who issued that Mississippi ruling: Andrew Oldham, James Ho and Kyle Duncan. They’ve all been floated as possible Supreme Court picks for the Republican nominee.
So if, heading into Election Day 2024, you’re thinking about how this Supreme Court would handle a case like the Mississippi one, imagine if, heading into Election Day 2028 or 2032, the next justices are the judges who handed down that ruling.
The two oldest justices are Clarence Thomas, 76, and Samuel Alito, 74. Chief Justice John Roberts is 69, while Democratic appointees Sonia Sotomayor and Elena Kagan are 70 and 64, respectively. All three Trump justices as well as President Joe Biden’s lone pick, Ketanji Brown Jackson, are in their 50s.
The Senate is therefore important, too. Democrats hold precarious control by a 51-49 margin. Even if Kamala Harris keeps the White House in Democratic control, we don’t have to wonder how a Republican-controlled Senate would act during her administration. Look what happened when then-President Barack Obama nominated the mild-mannered Merrick Garland to fill the late Antonin Scalia’s seat. Republicans wouldn’t even give Garland a hearing. That left Scalia’s seat open for Republicans to install Gorsuch, who, along with Kavanaugh, Barrett, Thomas and Alito, was in the five-justice majority that went on to overturn Roe v. Wade.
How such issues are decided at the high court in the future could effectively be decided Tuesday.
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