Elections have consequences. The power to nominate federal judges, especially members of the United States Supreme Court, became a major issue during the 2016 presidential election between Donald Trump and Hillary Clinton.
Trump’s victory was the culmination of a decades-long campaign by the Federalist Society and other conservative groups to remake the judiciary in their own ideological image. During his four-year term, Trump nominated 174 judges to the U.S. Court of Appeals, 54 judges to the U.S. District Courts and three officials to the U.S. Court of International Trade. Most importantly, Trump nominated three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all of which were confirmed by the Republican Senate. Not since Ronald Reagan has one president named so many justices.
Though the Democrats regained the presidency and (barely) the Congress in 2020, Trump’s judicial appointments made sure that conservative Republicans would control the judiciary for years to come. The three Trump justices joined Chief Justice John Roberts and Associate Justices Clarence Thomas and Samuel Alito to form a super-conservative super majority. In its recent rulings, the Court did its best to undo much of the progress Americans made during the last half-century. Though overturning Roe v. Wade, which legalized abortion rights, was the Court’s most infamous decision, there were others.
In the words of NPR’s Nina Totenberg, “just weeks after the shootings in Uvalde, Texas, the court issued a broadly worded opinion-making it more difficult to regulate guns. In a major environmental case, the court curbed the EPA's ability to deal with climate change, and in so doing signaled that other government assertions of regulatory power in the name of health and safety could be on the chopping block. In two religious cases, the court barely mentioned the concept of separation between church and state; rather, it expanded public funding options for religious schools and ruled in favor of a high school football coach who wanted to pray on the 50-yard line, a significant expansion of teachers' rights to the public, even ostentatious, religious expression while on the job.”
The Court also revised its own landmark ruling in McGirt v. Oklahoma (2020), which ruled that much of eastern Oklahoma (the former Indian Territory) remains Indigenous land, by determining that prosecution of non-Native Americans on tribal land be jointly held by federal and state governments.
Though Justice Alito wrote the Court’s abortion ruling, the driving force behind this and other decisions was Justice Thomas. In an opinion supporting the demise of Roe v. Wade, Ginni Thomas’s husband went further than Alito and the three Trumpers, calling on his colleagues to go beyond abortion and revisit Court cases that favored marriage equality, sex outside marriage, and contraception. Thomas’s proposal to undo fifty years of progress for LGBT people and others has the support of ideologues like Texas Attorney General Ken Paxton, who looks forward to the day when he will defend a new Texas sodomy law.
It is imperative that all of us make sure that the United States of America does not become a judicial tyranny, especially when the potential tyrants are so far to the right. Though we have heard proposals ranging from impeaching sitting justices or adding new ones, the best way to reform the judiciary is to elect progressive, Democratic women and men to both the executive and the legislative branches. The Trump court already plans to place its stamp on other matters, which promises that the 2023 session will be as bad (or worse) as the 2022 session. We must do our best to prevent this.
Jesse Monteagudo is a freelance writer and journalist. He has been an active member of South Florida's LGBT community for more than four decades and has served in various community organizations.