Trump enjoys theatrical gestures - perhaps he will embrace in bipartisan fervor the Democrats' court expansion plan and enjoy the spectacle of them having to reverse themselves on expanding the Court.
The entire point is to expand the court in order to balance it. Let a moderate be the swing vote. If Trump did the same thing, then yes, I'd embrace it.
My prediction: Alito will announce his retirement in July 2025, at the conclusion of the current SCOTUS term. Thomas will stay on the Court for another three years until he passes William O. Douglas as the longest serving Justice in U.S. history in June 2028. He'll announce his retirement pending the confirmation of his successor, and Trump will have time to replace him before the 2028 election (the 2026 Senate map looks terrible for Dems, so while I expect them to retake the House in the midterms, the GOP should keep their Senate majority).
Also, I'm really not a fan of this emerging trend where Justices are creating quasi-dynasties by apparently cutting deals to retire and get replaced with a former clerk. We've seen it with Kennedy > Kavanaugh and Breyer > Jackson. Enough.
My main thought is that the easiest case of all of these would have been the Georgia case. Willis could have filed a straightforward case and quite possibly have gotten a verdict by now. Instead, that sprawling RICO horror has turned out to have all of the problems that Ken White said it would, and he didn't foresee the ethical misconduct. She's done the same thing in the Young Thug trial.
One item I have wondered about. What if he goes ahead with what progressives have suggested for a while? Expand SCOTUS to 13 members and put young right wing justices in place.
Good to hear that these are both safe for the next two years. Non-legal person here trying to educate myself. Can you point me to a good resource online for info, such as what it would take to get rid of filibuster and expanding Supreme Court?
The size of the SCOTUS can be changed by simple legislation — an amendment to the current Judiciary Act that specifies the Chief plus eight — if passed by a majority of both chambers of Congress and signed by the POTUS. (Or passed over a presidential veto with a two-thirds majority of both chambers, which is almost unthinkable.)
But Trump's unlikely to seek to change the size of the SCOTUS, since there are already six Republican-appointed members of the SCOTUS — and indeed Trump's likely to "refresh" the seats currently held by Thomas and Alito (the oldest of the GOP-appointed Justices by far) with younger replacements, denying the Dems a practical opportunity to regain a SCOTUS majority any time soon.
The filibuster dynamics are harder to explain, especially since we don't yet know who's going to control the House. The filibuster exists solely as an internal Senate Rule governing debates and voting, and could be changed — without involvement by the House of Representatives or the Executive Branch — at any time by a simple majority vote of that Senate.
The filibuster is inherently conservative, an impediment to radical change like changing the size of the SCOTUS, or like rewriting the voting rights laws in the ways Biden wanted to do in the first two years of his administration. But there are probably enough traditional (non-populist/less Trumpy) GOP senators who are taking the long view — i.e, who recognize that progressives will be in power again soon enough, such that conservatives would rue having ever abolished the filibuster — that even Trump wouldn't be able to persuade the Senate GOP caucus to make the change in Senate rules that would end the filibuster even for ordinary (non-reconciliation) legislation.
Just as Biden and Schumer called for Senate Democrats to abolish the filibuster so they could pass voting rights legislation in the first two years of Biden's administration (when such legislation could still get through Pelosi's House), but were frustrated by Manchin & Sinema's refusal to go along with Schumer, Trump might call for GOP Senators to abolish the filibuster so he could get around moderates (like Murkowski or Collins) at will with a bare majority vote. But traditionalists like Thune or Cornyn seem to me at least as unlikely to go along with him as Manchin or Sinema were with Biden.
If you ever want to get deep, deep into the weeds on the filibuster, Robert Caro's third book in his projected five-volume biography of LBJ, "Master of the Senate," has it all. It's the story of how LBJ finally broke the series of guaranteed filibusters that had enabled southern Democrats to maintain Jim Crow and "separate but equal" for decade upon decade, to pass the (comparatively modest but still breathtakingly significant, especially on voting rights) Civil Rights Act of 1957, which in turn became the model for LBJ's much less subtle use of political power in the landmark Civil Rights Act of 1964 and Voting Rights Act of 1965. Caro is a splendid (if compulsively comprehensive) writer, but for my money this long book is still the single best volume on American political history ever written.
My apologies if you got a couple of different email versions of the comment above, and if the final version looks different from the last email version. But it was a productive mental exercise for me to write (and then re-write, and then edit) — so thank YOU.
Save this post-Republicans will remain in power for at least the next 12 years. Trump will build much better team this time and with control of all three branches, he will deliver what he promised. So, I expect the Supreme court to be 100% conservative before the 12 years ends and the country will get a relief from the oversized federal government, and the nanny state waste. Can't wait for the millions of federal pencil-pushers begging for jobs on LinkedIn (including Jack Smith). I'm loving it!!!
Mr. Heslinga, I apologize for not replying sooner, and for perhaps causing your confusion over my comment.
In response to a follow-up question by RBN CO elsewhere on this page, I explained my reasoning more thoroughly, and specified that I was referring only to legislative filibusters (other than reconciliations, which are exempted).
Legislative filibusters are the only sort of filibuster that remains, since a Democratic Caucus led by Harry Reid abolished it for all presidential appointments other than, ridiculously and without principle, the SCOTUS, and then a Republican Caucus, led by Mitch McConnell, abolished what was left of the appointments filibuster for SCOTUS too.
I was giving an opinion only on the prospects of the legislative filibuster surviving. I don't believe Trump could persuade 50 GOP senators to abolish the legislative filibuster, for reasons I've explained elsewhere on the page, during the coming two years.
Because 51 Senators chose to abolish it not too long ago, just as a radicalized and confident Republican Party will be tempted to do more generally when Democrats filibuster theirs priorities.
Hence the foolishness of proclaiming it safe and hence my question.
Among those happiest about the election results are surely the CEO and financial officers of Chubb, who posted Trump's supersedeas bond in the Carroll case. A new AG can't simply dismiss that case on Ms. Carroll's behalf, nor can Trump fire U.S. District Judge Lewis A. Kaplan or the Second Circuit panel judges who'll be reviewing that judgment. But the settlement value of the case just shifted dramatically, and I will be surprised if both sides can't find a number at which Trump can buy his way out with a new NDA.
I am in the minority which believed that in the public records falsification case in New York County state court, Judge Juan Merchan was on the brink of pronouncing a sentence that would have included some form of incarceration. However conclusive the DoJ may consider its own past memos on the impediments to prosecuting a sitting POTUS to be — and the new Trump Administration is going to treat them as gospel, and indeed, perhaps the only Holy Commandment that Trump isn't willing to see broken — it doesn't bind Juan Merchan. But the pressure on him to impose a noncustodial sentence, if he imposes any sentence at all, will be unprecedented. Even if he resists it, I'm unconvinced that the Appellate Division or Court of Appeals would be so stalwart in demonstrating federalism in action. Bail pending appeal was always a certainty anyway. But I would be surprised if Trump's lawyers and representatives from Alvin Bragg's office aren't in renewed plea discussions today about a misdemeanor plea and fines through which, again, Trump can buy his way out of this problem.
He'll likewise reach a deal with the NY AG in the civil cases, probably with reduced fines, a consent decree, and further in-house monitoring of Trump's legacy New York real estate-based businesses. (He doesn't need them to shelter his grifting anymore anyway.)
The Georgia GRICO case was never going to seat a jury within Trump's natural lifetime regardless.
And I'm not expecting the Eleventh Circuit to be persuaded by amicus or other outsider efforts to oppose the new administration's motion to dismiss Smith's appeal of Judge Cannon's dismissal order. Is there any universe in which Aileen Cannon is not at the top of Trump's list to replace either Alito or Thomas? If the GOP has 54 or 55 in the new Senate, she might be confirmable.
I think the potential for Trump to appoint an absolutely insane SCOTUS pick is quite high. I think he is disappointed in his 3 picks from last term and might look to pick one of those district judges in Texas that Ken Paxton likes to forum shop for. I would genuinely be relieved if he picked one of his notable circuit picks from his last term like Ho or Newsom.
While Trump has a lot of leeway in the Senate, especially since he basically owns the Republican Party right now, there are limits. I don’t think, say, Jeffrey Clark or Alina Habba could be confirmed to SCOTUS (but to other jobs, including DOJ ones—quite possibly).
I'm a European lawyer, can you explain what the limits are, and why these guardrails are so different from all the other guardrails he broke when they were stronger and there was the re-election to think about, and there weren't so many amenable judges and, crucially, Justices?
Mainly I think the person has to be qualified, just in terms of traditional credentials—and not disbarred or otherwise in ethical trouble with the bar (which I think would be Jeffrey Clark’s problem—although I believe he’s still fighting this out).
Given the margin in the Senate, it will be harder to stop a nominee just because they’re “too conservative.” So Judge Ho or Judge Van Dyke (9th Cir.) are far more viable now than they would be in, say, a 50-50 Senate with Vance breaking ties (as Harris had to do for a number of Biden judges).
So, in other words, David Lat bases his conclusion that 'not just any fanatical lawyer can become a judge or a Supreme Court Justice' on, what, political actors honouring tradition?
I have some difficulty seeing how the Heritage Foundation / Project 2025 people, much less Donald, will honour tradition in Senate.
I hope you noticed that Donald wants to bypass senate confirmation hearings for his cabinet. Would you not agree that this is concrete evidence against your belief that he will honour customary norms when it comes to appointing judges?
It might make sense for Alito or Thomas to retire--but as we saw in the case of Ruth Bader Ginsburg sense does not seem to play much of a role in these decisions. There is something Shakespearian in the way that justices now remain in their seats. And there is substantial likelihood of Democratic Senate, or a 50-50 Senate, after 2026 elections, meaning that to do this Alito and Thomas would have to do it soon, and I do not see that. So my bet is that neither of them retires during Trump's term.
Justice Alito is a conservative who is a critical member of the conservative majoirty on free exercise of religion issues-I don't think he will retire soon.
Although the most likely pick to replace Justice Alito would be his former clerk, Judge Andy Oldham (5th Cir.)—who I think holds very similar views on these issues.
I can't really say that I look forward to David being wrong about a new Trump DOJ being like a traditional Republican one, but I think he will be, and I'm unimpressed how he's already discounting the likely radicalism, cronyism / corruption, and corrosion of due process and the rule of law. Indeed, that particular bit of unsupported punditry reminds me of Congressional Republicans wondering where the harm was in indulging Trump's election lies.
Excellent overview, as always, but you left out the New York cases. New York criminal court Justice Juan Merchan will issue his decision tomorrow on trumps motion to dismiss his conviction based on the Scotus immunity decision; still to come, will be his decision, if necessary, as to sentencing. On the civil side, Trump’s appeal from is $454 million judgment in the business ride civil cases is pending before the appellate division, who expressed considerable skepticism, is to the grounds for the findings and the amount of damages imposed by the trial court. Trump’s status as President-Elect means that, as a practical matter, any enforcement if a criminal sentence or a civil judgment will be stayed until his term ends.
I did discuss the criminal case. I left out the civil cases because I don’t think they are affected much (unless he didn’t comply with a judgment and contempt had to be enforced).
Trump enjoys theatrical gestures - perhaps he will embrace in bipartisan fervor the Democrats' court expansion plan and enjoy the spectacle of them having to reverse themselves on expanding the Court.
The entire point is to expand the court in order to balance it. Let a moderate be the swing vote. If Trump did the same thing, then yes, I'd embrace it.
My prediction: Alito will announce his retirement in July 2025, at the conclusion of the current SCOTUS term. Thomas will stay on the Court for another three years until he passes William O. Douglas as the longest serving Justice in U.S. history in June 2028. He'll announce his retirement pending the confirmation of his successor, and Trump will have time to replace him before the 2028 election (the 2026 Senate map looks terrible for Dems, so while I expect them to retake the House in the midterms, the GOP should keep their Senate majority).
Also, I'm really not a fan of this emerging trend where Justices are creating quasi-dynasties by apparently cutting deals to retire and get replaced with a former clerk. We've seen it with Kennedy > Kavanaugh and Breyer > Jackson. Enough.
I could not agree more—and wrote a piece about this for the WSJ with Laurie Lin (gift link):
https://www.wsj.com/articles/federal-courts-arent-royal-ones-separation-of-powers-judicial-successor-appointee-biden-king-11638988111?st=s7bA19&reflink=mobilewebshare_permalink
My main thought is that the easiest case of all of these would have been the Georgia case. Willis could have filed a straightforward case and quite possibly have gotten a verdict by now. Instead, that sprawling RICO horror has turned out to have all of the problems that Ken White said it would, and he didn't foresee the ethical misconduct. She's done the same thing in the Young Thug trial.
One item I have wondered about. What if he goes ahead with what progressives have suggested for a while? Expand SCOTUS to 13 members and put young right wing justices in place.
Like the filibuster, the current size of the Court is safe for the next two years. Thereafter, it all depends on the midterm election returns.
Good to hear that these are both safe for the next two years. Non-legal person here trying to educate myself. Can you point me to a good resource online for info, such as what it would take to get rid of filibuster and expanding Supreme Court?
The size of the SCOTUS can be changed by simple legislation — an amendment to the current Judiciary Act that specifies the Chief plus eight — if passed by a majority of both chambers of Congress and signed by the POTUS. (Or passed over a presidential veto with a two-thirds majority of both chambers, which is almost unthinkable.)
But Trump's unlikely to seek to change the size of the SCOTUS, since there are already six Republican-appointed members of the SCOTUS — and indeed Trump's likely to "refresh" the seats currently held by Thomas and Alito (the oldest of the GOP-appointed Justices by far) with younger replacements, denying the Dems a practical opportunity to regain a SCOTUS majority any time soon.
The filibuster dynamics are harder to explain, especially since we don't yet know who's going to control the House. The filibuster exists solely as an internal Senate Rule governing debates and voting, and could be changed — without involvement by the House of Representatives or the Executive Branch — at any time by a simple majority vote of that Senate.
The filibuster is inherently conservative, an impediment to radical change like changing the size of the SCOTUS, or like rewriting the voting rights laws in the ways Biden wanted to do in the first two years of his administration. But there are probably enough traditional (non-populist/less Trumpy) GOP senators who are taking the long view — i.e, who recognize that progressives will be in power again soon enough, such that conservatives would rue having ever abolished the filibuster — that even Trump wouldn't be able to persuade the Senate GOP caucus to make the change in Senate rules that would end the filibuster even for ordinary (non-reconciliation) legislation.
Just as Biden and Schumer called for Senate Democrats to abolish the filibuster so they could pass voting rights legislation in the first two years of Biden's administration (when such legislation could still get through Pelosi's House), but were frustrated by Manchin & Sinema's refusal to go along with Schumer, Trump might call for GOP Senators to abolish the filibuster so he could get around moderates (like Murkowski or Collins) at will with a bare majority vote. But traditionalists like Thune or Cornyn seem to me at least as unlikely to go along with him as Manchin or Sinema were with Biden.
This op-ed is written from a conservative point of view but has a pretty good discussion of the pros and cons that might appeal to different political camps: https://orrinhatchfoundation.org/oped-posts/thehillfilibuster
Thanks so much! This is extremely helpful to me.
If you ever want to get deep, deep into the weeds on the filibuster, Robert Caro's third book in his projected five-volume biography of LBJ, "Master of the Senate," has it all. It's the story of how LBJ finally broke the series of guaranteed filibusters that had enabled southern Democrats to maintain Jim Crow and "separate but equal" for decade upon decade, to pass the (comparatively modest but still breathtakingly significant, especially on voting rights) Civil Rights Act of 1957, which in turn became the model for LBJ's much less subtle use of political power in the landmark Civil Rights Act of 1964 and Voting Rights Act of 1965. Caro is a splendid (if compulsively comprehensive) writer, but for my money this long book is still the single best volume on American political history ever written.
My apologies if you got a couple of different email versions of the comment above, and if the final version looks different from the last email version. But it was a productive mental exercise for me to write (and then re-write, and then edit) — so thank YOU.
Save this post-Republicans will remain in power for at least the next 12 years. Trump will build much better team this time and with control of all three branches, he will deliver what he promised. So, I expect the Supreme court to be 100% conservative before the 12 years ends and the country will get a relief from the oversized federal government, and the nanny state waste. Can't wait for the millions of federal pencil-pushers begging for jobs on LinkedIn (including Jack Smith). I'm loving it!!!
Based on what? Why do you think the filibuster is safe?
Mr. Heslinga, I apologize for not replying sooner, and for perhaps causing your confusion over my comment.
In response to a follow-up question by RBN CO elsewhere on this page, I explained my reasoning more thoroughly, and specified that I was referring only to legislative filibusters (other than reconciliations, which are exempted).
Legislative filibusters are the only sort of filibuster that remains, since a Democratic Caucus led by Harry Reid abolished it for all presidential appointments other than, ridiculously and without principle, the SCOTUS, and then a Republican Caucus, led by Mitch McConnell, abolished what was left of the appointments filibuster for SCOTUS too.
I was giving an opinion only on the prospects of the legislative filibuster surviving. I don't believe Trump could persuade 50 GOP senators to abolish the legislative filibuster, for reasons I've explained elsewhere on the page, during the coming two years.
There is no filibuster when selecting Supreme Court judges
Because 51 Senators chose to abolish it not too long ago, just as a radicalized and confident Republican Party will be tempted to do more generally when Democrats filibuster theirs priorities.
Hence the foolishness of proclaiming it safe and hence my question.
You misunderstood me, sir.
Succinct and cogent, Mr. Lat. Well done.
Among those happiest about the election results are surely the CEO and financial officers of Chubb, who posted Trump's supersedeas bond in the Carroll case. A new AG can't simply dismiss that case on Ms. Carroll's behalf, nor can Trump fire U.S. District Judge Lewis A. Kaplan or the Second Circuit panel judges who'll be reviewing that judgment. But the settlement value of the case just shifted dramatically, and I will be surprised if both sides can't find a number at which Trump can buy his way out with a new NDA.
I am in the minority which believed that in the public records falsification case in New York County state court, Judge Juan Merchan was on the brink of pronouncing a sentence that would have included some form of incarceration. However conclusive the DoJ may consider its own past memos on the impediments to prosecuting a sitting POTUS to be — and the new Trump Administration is going to treat them as gospel, and indeed, perhaps the only Holy Commandment that Trump isn't willing to see broken — it doesn't bind Juan Merchan. But the pressure on him to impose a noncustodial sentence, if he imposes any sentence at all, will be unprecedented. Even if he resists it, I'm unconvinced that the Appellate Division or Court of Appeals would be so stalwart in demonstrating federalism in action. Bail pending appeal was always a certainty anyway. But I would be surprised if Trump's lawyers and representatives from Alvin Bragg's office aren't in renewed plea discussions today about a misdemeanor plea and fines through which, again, Trump can buy his way out of this problem.
He'll likewise reach a deal with the NY AG in the civil cases, probably with reduced fines, a consent decree, and further in-house monitoring of Trump's legacy New York real estate-based businesses. (He doesn't need them to shelter his grifting anymore anyway.)
The Georgia GRICO case was never going to seat a jury within Trump's natural lifetime regardless.
And I'm not expecting the Eleventh Circuit to be persuaded by amicus or other outsider efforts to oppose the new administration's motion to dismiss Smith's appeal of Judge Cannon's dismissal order. Is there any universe in which Aileen Cannon is not at the top of Trump's list to replace either Alito or Thomas? If the GOP has 54 or 55 in the new Senate, she might be confirmable.
I partially concur. Had Trump lost, I think Merchan would have sent him to prison (for a short time).
I think the potential for Trump to appoint an absolutely insane SCOTUS pick is quite high. I think he is disappointed in his 3 picks from last term and might look to pick one of those district judges in Texas that Ken Paxton likes to forum shop for. I would genuinely be relieved if he picked one of his notable circuit picks from his last term like Ho or Newsom.
While Trump has a lot of leeway in the Senate, especially since he basically owns the Republican Party right now, there are limits. I don’t think, say, Jeffrey Clark or Alina Habba could be confirmed to SCOTUS (but to other jobs, including DOJ ones—quite possibly).
I'm a European lawyer, can you explain what the limits are, and why these guardrails are so different from all the other guardrails he broke when they were stronger and there was the re-election to think about, and there weren't so many amenable judges and, crucially, Justices?
Mainly I think the person has to be qualified, just in terms of traditional credentials—and not disbarred or otherwise in ethical trouble with the bar (which I think would be Jeffrey Clark’s problem—although I believe he’s still fighting this out).
Given the margin in the Senate, it will be harder to stop a nominee just because they’re “too conservative.” So Judge Ho or Judge Van Dyke (9th Cir.) are far more viable now than they would be in, say, a 50-50 Senate with Vance breaking ties (as Harris had to do for a number of Biden judges).
So there's some kind of formal qualification beyond being member of a bar association in good standing?
No, beyond the fact 51 senators (really 50) need to vote to confirm the pick
So, in other words, David Lat bases his conclusion that 'not just any fanatical lawyer can become a judge or a Supreme Court Justice' on, what, political actors honouring tradition?
I have some difficulty seeing how the Heritage Foundation / Project 2025 people, much less Donald, will honour tradition in Senate.
I hope you noticed that Donald wants to bypass senate confirmation hearings for his cabinet. Would you not agree that this is concrete evidence against your belief that he will honour customary norms when it comes to appointing judges?
It might make sense for Alito or Thomas to retire--but as we saw in the case of Ruth Bader Ginsburg sense does not seem to play much of a role in these decisions. There is something Shakespearian in the way that justices now remain in their seats. And there is substantial likelihood of Democratic Senate, or a 50-50 Senate, after 2026 elections, meaning that to do this Alito and Thomas would have to do it soon, and I do not see that. So my bet is that neither of them retires during Trump's term.
Your point about the 2026 midterms affecting the composition of the Senate is key.
So to make another reference to Shakespeare, if CT or SAA wants to retire, “If it were done when 'tis done, then 'twere well it were done quickly.”
Justice Alito is a conservative who is a critical member of the conservative majoirty on free exercise of religion issues-I don't think he will retire soon.
Although the most likely pick to replace Justice Alito would be his former clerk, Judge Andy Oldham (5th Cir.)—who I think holds very similar views on these issues.
SCOTUS will not rule against Trump on any issue where they think he would defy them.
I can't really say that I look forward to David being wrong about a new Trump DOJ being like a traditional Republican one, but I think he will be, and I'm unimpressed how he's already discounting the likely radicalism, cronyism / corruption, and corrosion of due process and the rule of law. Indeed, that particular bit of unsupported punditry reminds me of Congressional Republicans wondering where the harm was in indulging Trump's election lies.
Trump could appoint Attila the Hun and not lose Sen. Collins.
Excellent overview, as always, but you left out the New York cases. New York criminal court Justice Juan Merchan will issue his decision tomorrow on trumps motion to dismiss his conviction based on the Scotus immunity decision; still to come, will be his decision, if necessary, as to sentencing. On the civil side, Trump’s appeal from is $454 million judgment in the business ride civil cases is pending before the appellate division, who expressed considerable skepticism, is to the grounds for the findings and the amount of damages imposed by the trial court. Trump’s status as President-Elect means that, as a practical matter, any enforcement if a criminal sentence or a civil judgment will be stayed until his term ends.
I did discuss the criminal case. I left out the civil cases because I don’t think they are affected much (unless he didn’t comply with a judgment and contempt had to be enforced).