Democracy versus demagoguery — that is how some, including Vice President Kamala Harris, have fashioned the battle between the Democrats and Republican former President Donald Trump.
We endlessly, perhaps myopically, focus on the candidates’ differences when it comes to the biggest policy issues facing our country, including the economy, inflation, reproductive choice, immigration, criminal justice, the environment and health care. But I believe we are not paying enough attention to the one presidential power which stands beyond the rest: the power to appoint justices of the Supreme Court and other federal judges.
Supreme Court justices make decisions affecting almost every aspect of our lives, including our bedrooms, doctors’ offices, places of worship and workplaces.
This constitutional power allows presidents to make decisions which cannot be undone by their successors or by Congress. Supreme Court justices and federal judges hold their positions for their lifetimes, and can only be removed via the impeachment process, which is extraordinarily rare.Supreme Court justices make decisions affecting almost every aspect of our lives, including our bedrooms, doctors’ offices, places of worship and workplaces. Our current court is comprised of six conservative justices, three of whom were appointed by Trump, and three liberal justices. The next president may have the power to reshape our court but that depends on who is elected, which justices might want to retire and the macabre business of looking at the justices’ ages to see who might next leave a vacancy on the bench.
If Trump is elected, we might expect Justice Clarence Thomas, the longest serving member of the court, who is 76 years old, to step down. Thomas has made no secret of his disdain for Washington, D.C. Trump would likely replace Thomas with another conservative justice who not always, but often, votes the same way Thomas does. Similarly, Justice Samuel Alito, 74, may also be eyeing retirement — at least given some comments that his wife made, which she thought were private. Here again, we could expect that Trump would appoint someone of a similar ideological tilt to Alito.
Thomas and Alito are not only fairly described as the court’s most conservative members, but they may also be the most likely to make rulings that favor Trump. If Trump were to choose their replacements, he would likely pick young jurists who, unlike Thomas and Alito, could cement the court’s conservative tilt for decades to come. In addition, sadly, we know that justices do not always retire on their own timelines, and some of them die while they are on the bench. If one of the liberal justices’ seats became vacant during Trump’s presidency, we would be looking at a court that could include seven conservative justices.
If Harris is elected, Justice Sonia Sotomayor, 70, could decide it is her time to step down. We can expect that Harris would appoint liberal and progressive justices, perhaps similar to President Joe Biden’s single appointee to the Supreme Court, Justice Ketanji Brown Jackson. However, and this is a big one, if the U.S. Senate is controlled by Republicans, they could refuse, or attempt to refuse, to give any of Harris’ future appointees a hearing. This would undermine Harris’ constitutional power to appoint federal judges, but would not be unheard of. During President Barack Obama’s presidency, the Senate, under then-Senate Majority Leader Mitch McConnell, refused to hold a hearing for Obama’s nominee to the Supreme Court, current-Attorney General Merrick Garland. But these questions go well beyond who Trump or Harris might replace on the high court. If Trump is re-elected, the question of whether this country will be ruled by laws or ruled by fiat will be answered by the federal judiciary. If the judiciary guards against what may be Trump’s worst tendencies to expand the power of the presidency and kneecap the power of federal agencies, then our Constitution will hold. But if the judiciary instead becomes a party to Trump’s apparent desires to do things such as use the military and the Justice Department to punish his opponents, then we might as well light our Constitution on fire.
If you care about any of the policy issues mentioned above, then you should be laser focused on how Trump and Harris would use their appointment power and, specifically, what types of judges each would appoint. Trump not only appointed three of the nine current Supreme Court justices, but he also appointed 54, or more than one-fourth, of our nation’s active appellate judges. For context, there are 179 authorized judgeships for the United States Court of Appeals. Similarly, there are more than 670 federal trial court judges and Trump appointed 174 of them.
We all remember that the current Supreme Court, which is split 6-3 along ideological lines, overturned Roe v. Wade and, in doing so, has allowed states to ban abortions. But that is hardly the beginning or end of the court’s recent blockbuster decisions. The Roberts court has also made it more difficult for the government to implement gun control restrictions, whittled away the power of the Environmental Protection Agency, eroded the power of federal agencies more generally, declared affirmative action programs to be unconstitutional, and rejected President Joe Biden’s student loan forgiveness program. These are but a sampling of the court’s recent decisions. If Trump appoints those he views as loyalists, the judicial branch could become not a co-equal branch meant to check the power of the political branches, but a rubber stamp for his actions. At that point, our government would collapse in on itself, and at best we would be left with two political branches. It is worth pausing here to note that conservative judges, and judges who are Trump loyalists, meaning MAGA-aficionados, are not the same. Our conservative Supreme Court justices, again, one-third of whom were appointed by Trump, rejected his post-election litigation challenges after the 2020 election. If Trump is re-elected, his litmus tests to determine whom he appoints to the bench may not be whether candidates are conservative, but instead whether they pledge allegiance to him. Simply put, if Trump is elected, the pressure on the federal judiciary to hold the Constitution, and therefore our country, together will be enormous. Another Trump presidency could stress test our judiciary like nothing we have ever seen in our nation’s history.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
