What a difference a day can make.
On Tuesday morning, I woke up with some apprehension. No, not about the presidency, but about the judiciary. I was fearful that if Harris had prevailed, with majorities in both houses, the Supreme Court as we knew it would be gone. Through so-called judicial “reform,” the long-standing nine-member Court would either be expanded, or tiered through term limits. Who on the left would oppose it? While the former approach is clearly within Congress’s powers, the latter approach would be unconstitutional. Such a law would create a clash with the Court. And your guess is as good as mine about what would happen. Look how quickly the Mexican Supreme Court folded. There would also likely be expansion of lower court judges. When Steve Calabresi proposed this idea during the early Trump Administration, I vigorously opposed it. Thankfully, this idea never came to pass. But had Harris tried this approach, who on the left would oppose it? All we would hear would be noise about the Fifth Circuit, buttressed by a never-ending series of tweets, substacks, and podcasts. At that point, familiar debates about originalism and vacatur would become quite pointless. Much of my work in the field of constitutional law would amount to little. I do like teaching Property!
Tuesday was a very long day. I deliberately did not watch any cable news until about 8:00 ET when polls started to close on the east coast. With my many monitors, I was simultaneously watching CNN, FOX, MSNBC, CBS News, and keeping an eye on the NY Times “needle.” Every few moments I would turn the volume on from a different channel. As the evening wore on, the Fox correspondents started to smile more while the MSNBC correspondents started to look more dour. By midnight, it became pretty clear that Trump would prevail. I stayed up till about 3:00 in the morning after President Elect Trump’s victory speech.
As I watched that speech, my concerns for the judiciary evanesced–for at least four more years. I don’t pretend for a moment that efforts to destroy the Court have magically vanished. They will simply lie in wait until power is reclaimed. Indeed, the foundation for Court “reform” will continue, unabated, over the next four years. There will be a never-ending series of tweets, substacks, and podcasts about the “illegitimate” Court and the “corrupted” Justices. Make no mistake about the object of those outputs.
Where does that leave us now? The most imminent question is what happens to the Solicitor General’s cases that are currently pending before the Supreme Court. Most of the federal cases are not particularly controversial, so there should be no changes. But for high-profile matters, there may be “presidential reversals.” (I wrote about these flips in a 2018 article.) “Upon further reflection” is code for “upon further election.” The most obvious candidate is Skrmetti. When the case was granted, I observed that the Court only took the government’s petition. And this grant would leave open the possibility that a Trump DOJ could flip sides, and support the Tennessee law. At that point, what happens? A DIG? Munsingwear? Does the Court appoint an Amicus? Let the ACLU take over the case? Or does the Trump DOJ let the case ride, and see if the Court upholds the law. The case will be argued in December. I’m sure all eyes will be on Justice Gorsuch to see what he does. We remember the fallout to Gorsuch’s questions in Bostock.
There may also be some pending cert petitions that the Trump DOJ withdraws. I have not taken a close study of what is on the docket. This move would not be unprecedented. In 2009, the Obama Justice Department withdrew a cert petition filed by the Bush EPA.
Oh, and speaking of the SG, I told several reporters in the past month that Elizabeth Prelogar would be the most obvious Democratic pick for a Supreme Court vacancy. Prelogar’s advocacy is near-flawless, and she has a remarkable rapport with the Justices. I’ve rarely seen a lawyer who can connect so directly with each Justice as she speaks. During argument, she looks right at the Justices, and they look right back at her. It is a gift. She could have brought that gift to persuade her colleagues inside and outside the conference. And combined with her former boss, Justice Kagan, there would have been one helluva one-two punch. It is not meant to be, at least for now. Prelogar will find her way into private practice, and be just fine. She is forty-four now. Her window for the Supreme Court will remain open for four or maybe eight more years.
After a flurry of DOJ filings in January, the next shoe to drop will be a potential vacancy on the high court. The morning after the election, Ed Whelan wrote “I expect Alito to announce his retirement in the spring of 2025.” This statement was made quite categorically. I think Ed knows something here. I told a reporter today that I would not blame Justice Alito for stepping down. He could spend time at his home on the Jersey Shore without the media trying to destroy him. Plus, his judicial legacy is set with the Dobbs decision. Indeed, the arc from his Third Circuit decision in Casey to Dobbs is a remarkable journey. If Justice Alito does decide to step down, that will immediately put forward a contest among the various Trump circuit nominees. No, I will not engage that debate here. Another time.
Ed, however, is not so sure about Justice Thomas. He writes “I hear some folks say that Thomas won’t retire.” I’ve heard much the same. One friend told me that the only way Justice Thomas leaves the Court is in a pine box. I can fully understand that point. And in candor, is there really anyone better on the lower courts than CT? Even someone thirty years younger? I’m not so sure.
Perhaps there is one carrot that could entice Justice Thomas to step down: the opportunity to serve as Attorney General. Imagine that for a moment. Clarence Thomas could be the most transformative Attorney General since Ed Meese. He could recommit the Department of Justices to the original meaning of the Constitution, in every facet of its operations. There are many federal statutes whose constitutionality would no longer be defended. Entire volumes of OLC opinions can be reviewed. Agency memoranda can be tossed in the incinerator. Statements of interest would be filed in all the right cases. And I have no doubt that the Thomas clerk network would be willing to staff each and every post in the Justice Department. It would be a veritable constitutional army. In four years, so much good could be done. Of course, I can’t imagine that Justice Thomas would ever want to go through another confirmation hearing. Still, all things considered, it is worth considering. And if Thomas is not confirmed, he can go back to the job he loves.
Of course, there is also the center seat. Ed Whelan says there is a “strong possibility that Chief Justice Roberts” may step down over the “next ten or twenty years.” It could happen sooner. Feel free to discount any such speculation, especially in light of my repeated calls for Roberts to resign. This position has to be exhausting. Roberts has had to shoulder more crises than any Chief Justice since the New Deal. Now is not the place to assess Robert’s performance, other than to say it is a thankless task. Moreover, Roberts came to the Court with the goal of building up the institution, and having fewer 5-4 decisions. To the extent Roberts has been successful at that goal, it is by using his own vote to join the left. Roberts has had limited success in persuading others. And I doubt that task will get any easier with one or two more Trump appointees. No one would begrudge Roberts for moving on.
There is much more to write about the Court in the coming weeks and months. For now, I am just thankful the Court will remain the Court.
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