After expanding their Senate majority despite losing the House on Tuesday, Republicans are poised to reshape the federal judiciary for a generation—with implications for everything from arbitration to contraception to climate change.
Moving the judiciary farther to the right has long been among the Republican Party’s major goals, and Republicans have had considerable success in that endeavor. The Supreme Court has had a Republican-appointed majority at all times since 1970, so the general trend of legal doctrine has been decidedly rightward for half a century. But the project of staffing a Republican judiciary has picked up speed under President Donald Trump. So far, the Trump administration has appointed 84 federal judges—almost twice as many as President Barack Obama had appointed at the comparable stage of his administration.
Now, we can expect the appointment of conservative judges to accelerate even more. With the House in Democratic hands, stocking the judiciary is something consequential that the Republican-controlled Senate can get done over the next two years. Still, just how long and how much those appointments will matter won’t be known until the 2020 electoral cycle runs its course.
Even with no further judicial appointments, the courts are poised to move the law significantly to the right. As a consequence of the Republican Senate’s stonewall of Merrick Garland and the replacement of Justice Anthony Kennedy with Justice Brett Kavanaugh, the Supreme Court now has a majority that might fulfill many conservatives’ long-held hopes of overruling Roe v. Wade and banning all race-based affirmative action.
But the ongoing transformation of the judiciary may reach considerably farther than those two landmarks, significant though they are. Trump’s appointees are not merely very conservative, though as a group they are that. Many of them are also leading members of an elite legal vanguard associated with the Federalist Society, and an unusually high proportion have worked as legal academics. They come to the bench from years of thinking systematically about what they believe to be wrong with American law and what courts could do to move toward their visions—whether conservative or libertarian—of how the law should function. Their project, in other words, is not simply to decide cases and let the chips fall where they may. It is also to put in practice a set of theoretical commitments about American law that have germinated for decades within the Federalist Society and a related constellation of institutes and think tanks.
And although the generalization is not without its exceptions, the Trump nominees also tend to be highly capable as legal technicians. In many other spheres, the sheer incompetence of Trumpworld’s dramatis personae has been an obstacle to the effective implementation of programs. But the judicial nominees tend to be smart and skilled: the sort of people who will accomplish what they set out to do. Over time—and it might not take very long—a judiciary in which they are a powerful force is likely to have a broad impact across many fields of governance. It will become harder for government to regulate industry to protect the environment. The law of the workplace will become yet more friendly to employers. Consumer protection laws imposing labeling requirements might be struck down as violations of free speech. And the already-hobbled practice of using class action litigation to vindicate the legal rights of large, disparate groups of Americans injured by large corporations will become even further constrained.
Moreover, the sheer number of Trump’s judicial appointees may make it difficult for future Democratic presidents to reverse the trend. Not all presidents come into office with the same opportunities to make appointments. At the end of Obama’s presidency, many judgeships were vacant, largely because the Republican Senate had refused to confirm nominees. Trump could therefore fill a large number of positions quickly. If a Democrat defeats Trump in 2020, it’s a good bet that the current Senate will make sure to fill every available judicial vacancy before the new administration takes over, thus giving the next president a much higher hill to climb in any attempt to move the judiciary back toward the political center.
If the Republicans maintain control of the Senate past 2020, that hill would likely be insurmountably high even if a Democrat became president. Given the Garland model, the chances are good that a Republican Senate would refuse to let a Democratic president make any serious moves toward countering the gains that Republicans made in the judiciary under Trump.
Furthermore, between now and 2020, the judiciary is likely to play a considerable role in shaping whether the Republican Party maintains its political control of judicial appointments. That’s because in addition to abortion, affirmative action, and all sorts of social and economic issues connected to the modern administrative state, the courts now play an important role in the shaping of elections. With Citizens United and other campaign-finance decisions permitting the broad use of corporate treasuries for electioneering, and with decisions like Shelby Countygutting the provisions of the Voting Rights Act that for half a century impeded the efforts of southern states to blunt minority voting power, the Supreme Court may already have given a considerable boost to Republican political fortunes. It is anyone’s guess whether the thin margins of Republican victory in major 2018 races in places like Texas, Georgia and Florida would have held up in a world where the Supreme Court had not adjusted the playing field in these ways.
And the Supreme Court currently seems willing to do more in a similar direction. Consider New York v. Department of Commerce, a case now before a federal trial court in which a group of states alleges that the Commerce Department deliberately introduced a question about citizenship to the 2020 census in the hopes of deterring non-citizens from responding to census inquiries, thus undercounting the population in Democratic-leaning areas and skewing 2020 reapportionments toward Republicans. Several of the Supreme Court’s conservative justices have indicated willingness to reach out to hamstring the litigation at an unusually early stage, for example by blocking the scheduled deposition of Commerce Secretary Wilbur Ross.
In short, the power to choose judges is not merely a prize that the Republican Party has won by retaining control of the Senate. It is also a power that may help them retain the Senate, and therefore control of judicial appointments, into the farther future.