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Get to know Trump’s next round of Supreme Court justice selections.
Washington

Get to know Trump’s next round of Supreme Court justice selections.

In his first term, Donald Trump reshaped the federal courts in his image, installed right-wing extremist lawyers at all levels of the judiciary and secured a conservative supermajority on the Supreme Court. His second term will cement that legacy and likely solidify the Supreme Court’s far-right bloc for generations. Over the next two years, we can expect the two most senior justices, Samuel Alito and Clarence Thomas, to resign—and for Trump to replace them with two of the most stalwart partisans the court has ever seen. These judges will make Trump’s first three appointees seem moderate by comparison. And her appointment will dash Democrats’ hopes of recapturing or rebalancing the court for the foreseeable future.

Publicly, neither Alito nor Thomas have indicated that they plan to resign any time soon. But as the New Republic’s Matt Ford pointed out on Wednesday, Alito’s wife, Martha-Ann, recently hinted in a secret recording that he would soon retire. Alito is currently the most partisan justice on the court and appears poised to retire under Trump, likely this summer, to ensure an equally right-wing successor. Likewise, Thomas has proven to be a staunch Trump loyalist and has done everything he can to protect the former president from investigations and prosecutions. His individual votes and opinions reflect the most pronounced MAGA bias of any justice. Additionally, his wife, Ginni, is an avid Trump supporter who campaigned to overturn the 2020 election and had an open invitation to Trump’s White House. The Thomases are smart enough to realize that the judge’s legacy depends on him stepping down at the right time. This moment is not far away.

Who will replace her? For years, Trump’s lower court nominees have been running for SCOTUS, struggling to prove their loyalty to the man himself and the MAGA version of judicial conservatism. There are many loyal foot soldiers to choose from. But to replace Alito and Thomas, conservative lawyers have zeroed in on two Trump appointees to the U.S. 5 Court of AppealsTh Circuit: Andrew Oldham for Alito and James Ho for Thomas.

Both fit the MAGA mold perfectly: They espouse far-right views and troll their critics with brimming contempt. Both, of course, are long-time members of the Federalist Society. Oldham served as Texas’ deputy attorney general while Ho served as the state’s attorney general. In this role, both men led or participated in politically explosive lawsuits against the Obama administration. And after putting on the black robes, they helped transform the 5Th Tour through a factory of conservative fringe theories.

A selection of their opinions tells the story. Shortly before the election, Oldham wrote a shocking and incoherent opinion piece, which Ho echoed, declaring that it was illegal for states to count mail-in ballots cast by Election Day. (That conclusion, if correct, would invalidate hundreds of thousands of ballots in nearly 20 states.) Last year, both Oldham and Ho tried to force the Food and Drug Administration to restrict access to mifepristone, the first drug used in medication abortion. to block. Ho argued that it should be removed from the market entirely and that providers who mail it to patients are committing a federal crime. He also trollily argued that anti-abortion doctors were entitled to challenge the approval of mifepristone because they “enjoy working with their unborn patients – and suffer aesthetic injury if they are aborted.” (The Supreme Court disagreed.) Ho, who previously worked for the Christian nationalist First Liberty Institute, regularly speaks out on reproductive rights and once condemned abortion as a “moral tragedy” in an opinion piece.

They are just as extreme on pretty much every other topic too. Oldham wrote an opinion piece arguing that the Biden administration’s restrictions on ghost guns, untraceable weapons that are disproportionately used in crimes, violated Americans’ time-honored tradition of “gunsmithing.” Ho claimed in July that migrants seeking asylum at the border constituted a foreign “invasion” against which individual states could use force over federal resistance. Oldham joined an opinion piece suggesting that the entire Consumer Financial Protection Bureau was unconstitutional (which SCOTUS rejected). Ho voted to repeal a federal law banning domestic abusers from owning guns, writing that angry wives were taking advantage of the law and falsely accusing their husbands of abuse to gain an advantage in divorce proceedings. (Again, SCOTUS disagreed, dismissing this concern as a “straw man.”) Both men pepper their opinions with provocative accusations and phrases apparently designed to offend liberals—like when Ho railed against “a woke Constitution.” Ho also boycotted faculty at Yale Law School over the institution’s alleged “cancel culture” and Columbia University for allegedly acting as an “incubator of bigotry” by allowing controversial pro-Gaza protests.

And it goes on and on. The result is simple: These two justices share Trump’s penchant for owning liberals and will not deviate from the conservative line. They will not recognize the rights of LGBTQ+ employees under federal law, as Justice Neil Gorsuch did. They will not respect the Voting Rights Act’s mandate for racial justice in redistricting, as Justice Brett Kavanaugh did. They will not vote to allow the January 6 insurrectionists to be prosecuted for obstruction, as Judge Amy Coney Barrett did. There will be no surprises from Oldham and Ho. They will do what they were put on trial to do: advance the interests of the Republican Party under the guise of judicial review.

But of course there are little to no surprises from Alito or Thomas either. What difference would Oldham and Ho make? First, they could help shift the court’s center of gravity to the right. Alito and Thomas don’t appear to be making much effort to win over their colleagues as they stake out fringe positions. Oldham and Ho are much younger and belong to the same generation as Gorsuch, Kavanaugh and Barrett. They arose in the same circles of the Federalist Society. While Alito and Thomas appear to have largely given up on coalition building, Oldham and Ho could try to attract votes from the new middle of the court, which is already very conservative.

Their relative youth points to the second difference: Both men could easily serve for 30 years or more. That fact alone could dash Democrats’ hopes of shifting the court to the left in this half of the 21st centuryst Century. Before Tuesday, progressives’ best hope was that Alito or Thomas would retire or die under a Democratic president. That won’t happen. After the replacement, the window is more or less closed. At 69, Chief Justice John Roberts still has plenty of time to prepare his retirement for a like-minded successor. And if he is forced to retire under Trump, that swap would move the court even further to the right.

Republicans are playing the long game with the courts. They had a particularly crucial insight: If you pack the courts with partisans, it doesn’t matter whether your policies are too unpopular to go through the democratic process; They can instead be imposed by the judiciary. It is now fair to assume that the GOP has won this game. The Supreme Court today is extraordinarily conservative by historical standards. On Tuesday, the American people gave Trump the opportunity to cement his reactionary status for a long, long time Time.

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