Published July 25, 2024
Legal conservatives face a conundrum: A second presidential term for Donald Trump would offer great promise yet also would threaten grave peril for the causes and principles that the conservative legal movement espouses.
What we call “the conservative legal movement” is the loose coalition of lawyers, judges, and thinkers that organized around the nascent Federalist Society in the early 1980s. In the decades since, this coalition has vastly expanded and soared in influence. It has challenged liberal orthodoxy, established originalism as the predominant method of interpreting legal texts, developed generations of law students, and driven Republican presidents and senators to select and support outstanding conservative judicial candidates.
The movement’s breakthrough achievements occurred in Donald Trump’s appointments of Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. For the first time in a century, the Court had a conservative majority. The past three Supreme Court terms — the three strongest conservative terms in your lifetime (unless, perhaps, you are in your 90s) — are a resounding testament to this triumph.
If Trump becomes president again, he could ensure a solid conservative majority on the Court for the next 15 or 20 years. An election that produces his victory would very likely give Republicans control of the Senate. They’d be in good shape to keep control for all four years of his presidency: All but one of the Republican seats up for election in 2026 is in a red state (the exception is Susan Collins’s seat in Maine), and a Georgia seat held by a Democrat is very winnable.
Justice Samuel Alito, 74 years old, would likely retire in the next year or two. Justice Clarence Thomas, 76, might join him. Or a vacancy in another seat could arise. One way or another, Trump could easily have at least two seats to fill.
If Trump were to replace any two of the five most senior justices, he would have appointed a majority of the Court’s members. Any justice Trump appoints would surely be in his 50s or younger. So Justice Kavanaugh, now 59, would be the oldest of the five Trump appointees. And if Trump has the opportunity to replace one of the liberal justices, the general ideological alignment of the Court should shift from 6–3 to 7–2.
Trump has promised to issue a list of the Supreme Court candidates he would choose from, as he famously did to secure conservative support in 2016. He can build an outstanding list from the dozens of federal appellate judges he appointed. All but a handful of these judges are in their 40s or 50s. Someone else he should put on the list is another past pick of his, Noel Francisco, solicitor general (the government’s chief lawyer in the Supreme Court) from 2017 to 2020. On top of his superb qualifications, Francisco would be one of several appealing candidates to be the first Asian-American justice.
It would be a political folly for Trump to go rogue on — to look outside the conservative legal movement for — a Supreme Court pick. George W. Bush made that mistake in 2005: His nomination of his White House counsel and close friend Harriet Miers triggered a conservative revolt that forced her to withdraw. As Bush’s subsequent, successful nomination of Alito showed, the best path to winning confirmation of an excellent conservative justice goes through, not around, the conservative legal movement. Any good nomination by Trump should be confirmed by a Republican-controlled Senate.
On his lower-court picks as well, Trump should draw predominantly from the ranks of the conservative legal movement. There is no alternative network of candidates available, and Trump would see no political upside to making risky nominations.
The grave peril that a second Trump term would present for legal conservatives is the risk that he would abuse his powers to undermine the rule of law. The starkest of countless examples is his threat to prosecute his political enemies for the sake of vengeance. It’s tempting to declare that turnabout is fair play. But no matter how unfair or politically motivated you think the various prosecutions of Donald Trump have been, the rule of law forbids retaliatory prosecutions. That of course doesn’t mean that political enemies are immune from prosecution, but it does mean that a decision to prosecute should not be motivated by political considerations.
Perhaps Trump’s threat would prove to have been bluster. Perhaps he would decide, as he has said recently, that “success” would be his real revenge. But the danger that Trump would seek to exact retribution is heightened by the prospect that he would surround himself with lackeys. In his first term, Trump had key legal officials — White House counsels and attorneys general — as well as White House chiefs of staff who thwarted, rather than indulged, his worst impulses. He appears determined to make sure that he wouldn’t face such obstacles again. And very few talented individuals with good judgment would volunteer to be his punching bag.
Ironically, Trump would be somewhat constrained by his big Supreme Court victory on criminal immunity. If Trump is elected, Joe Biden will be the primary beneficiary of the Court’s ruling that a former president enjoys broad immunity from criminal prosecution for actions he took in his official capacity. And the running of the statute-of-limitations period should prevent a Trump administration from prosecuting Biden for the various other acts (I confess that I can’t keep track of them all) that Republican congressmen have suggested are criminal.
More broadly, legal conservatives have ample reason to fear that Trump would issue directives that are patently beyond his legal authority. It’s not much of an answer to point out Biden’s abuses. Here too, a recent Supreme Court ruling would help to constrain Trump: Specifically, the Court’s rejection of the Chevron doctrine of judicial deference to administrative agencies’ interpretations of federal law would redound to the benefit of those who challenged the legality of Trump-administration actions. Trump would have much less leeway to impose his own will. But if and when he tried to do so in violation of the law, legal conservatives should not apply a more lenient standard to his conduct than they did to Biden’s.
It might seem paradoxical to expect that Trump would appoint excellent justices and yet to fear that outside the realm of judicial nominations he would often act lawlessly. But Trump displayed that same combination during his first term. The key to resolving the paradox is that it would be in Trump’s strong political self-interest to make legal conservatives happy with his judicial appointments. To be sure, that incentive would be somewhat weaker in a second term, when Trump wouldn’t be trying to position himself for reelection. But his desire to win the Senate’s confirmation of his nominees should ensure quality picks.
Members of the conservative legal movement will arrive at different assessments of how the promise of a second Trump term would weigh against the peril that it presents. Some are vocally opposed to Trump. Most others, as much as they might have wished that someone else had won the Republican presidential nomination, would find it much more alarming that Kamala Harris (or whoever might be Trump’s Democratic opponent) would become president. If Trump is elected, let’s hope that they end up happy with their judgment.
Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.
