The Next Republican President's Supreme Court Picks Will Be Far Worse Than Trump's

[In It to Win It]

Slate

Archived:https://web.archive.org/web/20230731001825/https://slate.com/news-and-politics/2023/06/supreme-court-worse-than-kavanaugh-barrett-gorsuch-trump.html

Florida Gov. Ron DeSantis has taken aim at Donald Trump’s most cherished achievement among establishment conservatives: his transformation of the Supreme Court through the appointment of three staunchly right-wing justices. Trump’s judicial record is a point of pride across the GOP; indeed, DeSantis himself praised all three justices when they were nominated. Now that he’s competing with Trump for the 2024 Republican nomination, though, DeSantis has decided that there was room for improvement. In a conversation with Hugh Hewitt on Monday, the governor claimed he would “do better” than Trump. “I respect the three appointees he did,” DeSantis said, “but none of those three are at the same level of Justices Thomas and Justice Alito. I think they are the gold standard, and so my justices will be along the lines of a Sam Alito and a Clarence Thomas.”

In fact, Trump probably agrees that he could have done “better.” The former president has expressed his disappointment with “a number of” his three justices’ rulings, most prominently their rejection of his 2020 election challenges. (This included a fiery rant against the entire court as part of his infamous Jan. 6 Ellipse speech.) The top two contenders in the GOP primary have thus signaled that they will not seek a justice in the mold of Neil Gorsuch, Brett Kavanaugh, or Amy Coney Barrett—raising the question of what, exactly, they will be looking for in a nominee.

The race to the bottom is already a crowded one. This much, though, is clear: The next Republican appointee to SCOTUS will make Trump’s justices look good by comparison.

The current crop of far-right lower-court judges knows all this, and they are offering the alternative that Trump and DeSantis surely have in mind: a devotion to defending Republicans at all costs, combined with a nihilistic drive to enact far-right policies under cover of judicial decision-making. Cannon exemplifies this goalie-style approach to judging, diving at every ball that might harm Trump. So does D.C. Circuit Judge Neomi Rao, another Trump appointee, though she strives to make her handiwork more coherent.

Kacsmaryk embodies this new style of judging in another way: His decisions are maximally cruel, truculent, and offensive to progressives. Kacsmaryk’s decision pulling the abortion drug mifepristone from the market fused tendentious rhetoric with relentless gaslighting to justify an unprecedented, destabilizing intrusion into the drug-approval process. When the case reached the 5th Circuit, Judge Andrew Oldham wrote his own vicious opinion shot through with anti-abortion obloquy. But when the case reached SCOTUS, only Alito and Thomas were willing to stand up for Oldham’s decision; Gorsuch, Kavanaugh, and Barrett evidently voted to halt it. When the mifepristone case came back around to the 5th Circuit a month later, Judges James Ho and Cory Wilson—two more notoriously truculent Trump appointees—refused to heed the Supreme Court’s warning. Instead, they threw a temper tantrum from the bench, sounding less like jurists and more like protesters blocking the entrance to Planned Parenthood.

[dalton99a]

1. It is an absolute certainty.

[RobertDevereaux]

2. There must NEVER be another Republican faux-president.

[Carlitos Brigante]

3. I can totally see a Q-Anon generated AI with a 1700s wig. Boy, did that

asscarrot Scalito live up to the nickname.

[Hortensis]

4. Not necessarily. One of the problems of lifetime appointments to SCOTUS,

with no further promotion possible, has always been the independence and enormous power of those positions. Judge Cannon would no longer have to suck up to anyone, ever, as Justice Cannon. Nor would Kacsmaryk or anyone else. Their decisions on the court would not be the same as before, during their very lengthy try-outs for the job, and they would not have to keep promises made to get there..

Does anyone doubt the three tRump nominated left him believing they'd come through for him on the court?

But it would help decrease nasty surprises if appointees' own claimed ideology, as amenable and ignorable as it might seem, and gut feelings actually tended to be pretty solidly in line with those of the special interests whose investments in and expectations from their appointments are huge. The more unanchored by principle and "buyable" before, the more danger after of unreliability and destabilizing decisions that don't serve them.

It'd take a crazy president and others to want a crazy justice... Obviously, it could happen.

Fwiw, I believe we haven't begun to see the worst the 5 far-right, religion-oriented justices are capable of. The claims of tRump's 3 to originalist/textualist "beliefs" are obvious threats of hard-core conservative reinterpretation of the Constitution that purges its secular liberalism, including principles of equality and rights of the individual and the democratic sovereignty of the individual and electorate, to establish something like a hierarchical, male- and wealth-dominant Christian nationalism. That orientation is what they were selected for.

[tavernier]

5. Republicans?

Historians are saying that there’s no such thing anymore.

[Mr.Bill]

6. What is most scary

is there is no requirement that someone even has to be a lawyer to be a Supreme Court justice. A president like Trump could literally appoint Steve Bannon to the court. The only check and balance is that Senate approval is needed. And I have no doubt that if Trump did appoint him, and the republicans controlled the Senate, every one of them would vote yes.

[OrlandoDem2]

7. It's why we must always win the presidency and control the senate!