Six months out: The dangers to — and from — the courts in a second Trump administration

If Trump does win, even the best-case scenarios are very bad — for Democrats and the left, certainly, but also for democracy.

Election Day is six months away.

Donald Trump’s election to a second term would, at its least harmful, lead to the appointment of scores of new, younger, and potentially even more extreme judges. It would lead to the end of his federal prosecutions and arguments that remaining state prosecutions cannot proceed while he is president. And, Trump would, yet again, wield the powers of the executive branch.

In its more harmful iterations, Trump will take advantage of his power — particularly if the House remains in Republican control and Republicans take control of the Senate — and do whatever he wants to do and whatever his allies convince him to do. We have the substantial reporting from The New York Times on what a Trump second term would look like, we have Project 2025 as laid out and spearheaded by the Heritage Foundation, and we have the transcript from Trump’s extensive interviews with Time magazine’s Eric Cortellessa and his comments to Republican National Committee donors to guide us as to what could happen.

What’s more, Trump doesn’t even need to win. His candidacy on the general election ballot itself is a danger to our country due to the fact that he has shown he does not respect our democracy. In the second of his two Time interviews — one in person at Mar-a-Lago and a follow-up phone interview — Trump made clear that he will not accept a loss as legitimate.

On April 27, Trump was asked, “In our last conversation you said you weren't worried about political violence in connection with the November election. You said, ‘I think we're going to win and there won't be violence.’ What if you don't win, sir?”

Trump’s response was 2016 and 2020 all over:

Well, I do think we're gonna win. We're way ahead. I don't think they'll be able to do the things that they did the last time, which were horrible. Absolutely horrible. So many, so many different things they did, which were in total violation of what was supposed to be happening. And you know that and everybody knows that. We can recite them, go down a list that would be an arm’s long. But I don't think we're going to have that. I think we're going to win. And if we don't win, you know, it depends. It always depends on the fairness of an election. I don't believe they'll be able to do the things that they did the last time. I don't think they'll be able to get away with it. And if that's the case, we're gonna win in record-setting fashion.

We know that Trump will not admit the election was fair if he loses. We know that as sure as we know anything these days. The largest advantage from 2020 on that front is that Trump is not in office. He lacks access to many of the levers of power that he tried to manipulate in 2020. That isn’t all good, though, as it could encourage him to take even more extreme steps.

But, Trump losing is at least better than Trump winning.

If Trump does win, it’s important to realize that even the best-case scenarios are very bad — for Democrats and the left, certainly, but also for democracy.

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This Sunday, I just want to quantify the danger for — and subsequently from — the courts.

The federal courts are already unbalanced. The U.S. Supreme Court consists of three Democratic appointees out of nine justices — appointed over the course of five Democratic administrations and four Republican administrations.

Several appeals courts are more unbalanced. The 11 active judges of the U.S. Court of Appeals for the Eighth Circuit include just one Democratic appointee. Other circuits are also substantially unbalanced: Only five of 17 judges on the Fifth Circuit, six of 16 judges on the Sixth Circuit, and four of 11 judges on the Seventh Circuit were appointed by Democratic presidents. In contrast, the First Circuit has no Republican appointees and four of the 11 judges on the DC Circuit were Republican appointees. The Second, Third, Fourth, Ninth, and Tenth circuits are more closely divided. (Yes, the Ninth Circuit is more closely divided than you likely think because Trump confirmed 10 judges to the 29-judge court. At this point, while it still leans Democratic, 13 of the 29 judges are Republican appointees.)

None of that is to even mention what has happened in some district courts — a topic regularly covered at Law Dork.

A second Trump administration would make those numbers even more unbalanced, potentially dramatically so — with the risk to the legitimacy of the courts increasing, perhaps past a tipping point.

If the courts are a precarious place for justice already, a second Trump administration would likely end even the possibility of the courts being a potential source of justice without a radical alteration.

First, there will be judicial vacancies when the next administration begins. Although the Biden administration and Democratic-majority Senate have been fairly good about filling judicial vacancies — approaching 200 appointees confirmed — there are 30 current district court vacancies with no nominee and 17 future vacancies — including three appellate judgeships — with no nominee. Additionally, there are 26 nominations pending, including four appellate nominees.

In addition to whichever of those or other vacancies remain should Trump take office in 2025, additional Republican appointees could retire to ensure a younger Republican appointee would take their place. Other judges could retire out of necessity in spite of Trump’s presidency, and others might retire with no consideration of who is appointing their successor (a number much smaller than judges would acknowledge, but, nonetheless). And, of course, some judges will die in office.

Regardless of how they leave, there will be vacancies. There could be multiple Supreme Court vacancies — intentional or otherwise — given that Justices Clarence Thomas and Sam Alito will have passed and be approaching 80 years old, respectively, by the end of the next presidential term. And, given Trump’s 234 judicial appointees in his first term, he will surely — if Republicans also control the Senate — be certain to do all he can to even further unbalance the courts.

This is not only important in and of itself — which it is. It is also important for its consequences. Many Trump appointees are among the most extreme right judges in the federal judiciary. Another round of Trump appointees on the federal courts almost certainly would make it significantly more difficult to successfully challenge a second Trump administration‘s actions in court.

In other words, if you thought Trump v. Hawaii was bad — and it was — you ain’t seen nothing yet.

Further still, another four years of Trump judicial appointees would make governing all but impossible for any Democratic administration that follows Trump — assuming that Trump would leave office on Jan. 20, 2029, and that a Democrat is still able to succeed in the electoral process as it exists at that point.

In other words, if you thought Biden v. Nebraska was bad — and it was — you ain’t seen nothing yet.

A second four years of Trump judicial appointees could pose an existential danger to the Constitution and our democracy — as the courts further erode norms, erase inconvenient precedent, and cement in systematic disadvantages for those out of power or lacking power that prevent democracy from being exercised.