CNN
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Supporters and opponents of former President Donald Trump agree that the cornerstone accomplishments of his first term in office will continue to shape the American legal and political landscape for decades to come.
“I’ve completely transformed the federal judiciary,” Trump boasted last summer at a summit hosted by the right-wing group Moms for Liberty. “Many presidents don’t get a chance to appoint Supreme Court justices. I’ve had three justices, and they’re fantastic.”
The numbers show that this claim is not an exaggeration: As president, Trump has nominated 234 judges to the nation’s most important seats, including 54 who have completely changed the ideological makeup of the federal appeals courts and three who have led a generational transition on the nation’s highest court.
But as Trump marches toward a possible second term, one thing is clear: his term has only just begun — a reality that excites his supporters and scares even some legal scholars on the right.
“We are concerned that if President Trump is re-elected for a second term, he will impose more political tests on judicial nominees and look for people who are more loyal to him and to the Republican Party in general,” Greg Nunziata, executive director of the conservative Rule of Law Institute and a former adviser to the Senate Judiciary Committee, told CNN.
It’s a fear that President Joe Biden has said is his biggest concern heading into November.
“That’s one of the most frightening things,” he said at a star-studded fundraiser in Los Angeles last month, responding to a question about President Trump’s Supreme Court nominee. “The Supreme Court has never been in more disarray than it is today.”
Trump campaign officials and allies have made clear that a victory in November, combined with the perception that Republicans are increasingly likely to take control of the Senate, will set the stage for a new, and far more Trumpian, look at the court to take hold.
“I will again appoint solid conservative justices in the mold of Justice Antonin Scalia, Justice Samuel Alito, a great gentleman, and Justice Clarence Thomas, to do what they should do,” Trump promised a cheering crowd at the Family Research Council’s Prayer, Vote and Advocacy Summit in September. It was a promise he made in 2016 and 2020, and fulfilled again in 2020 and beyond.
Justices Alito and Thomas are not only important to Trump as models for his future justice selections: Many allies of the former president believe one or both could retire due to age, giving Trump an opportunity to solidify the Supreme Court’s conservative supermajority for a generation.
After relying heavily on longstanding Republican legal philosophy and the advice of the conservative Federalist Society during his first term, Trump has made it clear that he will move significantly to the right in his second term.
“It’s clear that the far right in this country is trying to operate in a post-constitutional paradigm, both from the positions Trump’s lawyers have taken in the lawsuit, what the administration has tried to do so far, and the extreme proposals in Project 2025,” Skye Perryman, president of Democracy Forward, a policy platform created by the conservative Heritage Foundation to prepare for a possible second Trump term, told CNN.
Trump has made good on his 2016 campaign promise to nominate conservatives to the federal courts, matching the number of confirmed nominees of presidents who have served twice as long as him.
But legal scholars say it’s not just the number of Trump’s nominees that will have a dramatic impact on the judiciary, but who he nominates that will have implications for decades.
“We want people in their 30s because they’re going to be here for 50 years, maybe 40 years,” Trump told an audience at the National Rifle Association’s annual convention in Dallas in May.
Though not in their 30s, the three justices nominated by President Trump to the Supreme Court — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were all under 55 at the time of their nomination. As they are younger than the average nominee, each has the potential to shape decisions and policies across the country for decades to come.
But the key thing all of Trump’s chosen candidates had in common wasn’t their age, but their conservative credentials.
“Will you commit to your voters tonight that religious freedom will be the absolute litmus test for who you appoint,” conservative talk radio host Hugh Hewitt asked Trump during a 2016 Republican primary debate. “Not just to the Supreme Court, but to every court?”
“Yes, I would,” Trump replied without hesitation.
The pledge, made shortly after Scalia’s death in February 2016, helped solidify support for Trump’s candidacy among skeptical Republicans.
When Trump entered the White House, he relied heavily on advisers and outside groups to fill the vacancies, with the help of Senate Majority Leader Mitch McConnell, who was eager to solidify conservative control of the nation’s courts.
“You know what my No. 1 priority is, and I’ve made that very clear: the judiciary,” McConnell told reporters midway through the Trump administration. “As long as we’re in a position to do that, we’re going to continue to confirm as many as we can.”
Working with a Republican-controlled Senate, Trump solidified a 6-3 conservative majority on the Supreme Court. The results have been dramatic, even now that Trump has left the Oval Office. Roe v. Wade was overturned. The Environmental Protection Agency and other federal agencies were stripped of their regulatory powers. Affirmative action in college admissions ended. And, deeply personal to Trump himself, a court ruling earlier this month granted the president near-total immunity while in office.
Trump also helped flip three of the nation’s 13 appeals courts, which play key legal roles in shaping domestic policy, and one of his appointees, U.S. District Judge Eileen Cannon, is now overseeing Trump’s classified documents case in Florida.
Trump’s supporters and critics alike point to a little-understood but clear change in the makeup of his nominations during his first term: a shift from candidates supported by the strong conservative legal establishment during his first two years in office to lawyers who embrace a more expansive — and sometimes legally ambiguous — view of executive power.
“Some of President Trump’s judicial appointees are pushing the envelope ideologically,” Donald B. Ayer, who served as deputy attorney general under former President George H. W. Bush, told CNN. “They’re doing it because that’s the outcome they want to achieve, but that’s not how the justice system should work. The justice system shouldn’t be primarily about achieving a particular outcome.”
It’s a legal philosophy that has been aggressively and financially built in the years since Trump left office through an outside group of former Trump administration officials and lawyers, just as former administration officials have built the external policy infrastructure surrounding Trump’s campaign.
These groups have repeatedly sued the Biden administration and sought investigations into its actions, but they have also served as an informal bulwark for Trump’s own legal woes.
“Look, once this election is over, I have every right to go after them based on what they’ve done,” Trump said of his political opponents in an interview with Fox News’ Sean Hannity last month.
This intent to exact revenge could set the bar for Trump’s nominees and administration lawyers in his second term.
“I’m not saying we should become a mafia,” Will Chamberlain, a senior adviser to the conservative group Article III Project and a former adviser to Florida Gov. Ron DeSantis, said at the National Conference of Conservatives in Washington this week, “but as a political party, we have to be prepared to just keep taking if we’re not going to give.”
Some of Trump’s aides have suggested expanding the fight even further and seeking to remove sitting judges from their seats, said John Eastman, a key architect of Trump’s efforts to overturn the results of the 2020 election and a speaker at conservative gatherings in Washington.
“We need to start impeaching the justices on this court for their incredibly partisan behavior,” Eastman said.
