Happy Halloween. Today, we're covering how the election could change the courts — as well as the candidates' closing arguments, floods in Spain and a haunted house. —David Leonhardt
Holding court
On Tuesday, Americans will elect the next president and hundreds of Congress members. In doing so, voters will also shape the third branch: the judiciary. Federal judges — whom the president picks and the Senate confirms — have become even more powerful in recent years as a polarized Congress has failed to pass major laws on many issues. As a result, the judiciary has shaped policy on abortion, immigration, guns, voting rights and more. Today's newsletter explains how the election could change the courts for decades to come. The Supreme CourtDonald Trump appointed three Supreme Court justices as president. If he wins next week, he may get more appointments than Kamala Harris would have gotten. History suggests one reason: In recent years, judges have tended to retire in time to let the president they prefer fill their seats. The oldest sitting justices today — Clarence Thomas, 76, and Samuel Alito, 74 — are Republican appointees. If they stepped down during a second Trump administration, the president could choose younger replacements who would cement conservative control of the court for decades. The Senate is another reason. Republicans seem more likely to control the chamber next year. If they do, they can block Harris from filling a vacancy, much as they did Barack Obama in 2016. "If he were re-elected, he'd probably get to appoint one if not two members to the United States Supreme Court," Harris said of Trump last week. She did not say how many appointees she may get if she wins. Harris also wants to enact term limits and an ethics code for the court, given the revelation that Thomas and Alito accepted luxury gifts without disclosing them. That's unlikely if Republicans control the Senate — and maybe even if Democrats do, thanks to the filibuster. Courts, remadeWhat about lower courts? Judges can serve for life. So the more a president appoints, the more he or she can shape the country. The Supreme Court hears only about 80 cases per year, meaning that lower courts are often the final arbiter on many issues. They set precedent on criminal justice, bankruptcy proceedings, corporate disputes and antitrust enforcement, and on whether federal laws and rules are constitutional. In a typical four-year term, a president replaces about one-quarter of the country's 870 active federal judges, across both federal district and appeals courts. Trump filled 231 vacancies, and President Biden may equal that number before the next Congress takes over. Partly as a result, Republican and Democratic presidents have each appointed about half of the judges on federal courts. The appeals courts lean slightly Republican, while the district courts lean Democratic (if you count senior judges who work less but still hear cases), according to Russell Wheeler of the Brookings Institution. The next president will likely be able to tip that balance, letting one party's appointees make up a clear majority of judges.
The next president will also alter the courts' racial, ideological and professional makeup. Under Trump, 76 percent of judicial nominees were men, and 84 percent were white, according to an analysis by my colleagues. Many had ties to the Federalist Society, a conservative legal group. Biden's appointees have been 63 percent female and 61 percent nonwhite. He has prioritized nominees who served as public defenders and civil rights lawyers, and his picks have tended to be more liberal than those of past Democratic presidents. A second-term Trump might have the edge over a first-term Harris because a Republican-controlled Senate could block some of her appointees. Perhaps moderate Harris nominees would get through, though: Most of Biden's appointees received bipartisan support. Another potential area of agreement is a bipartisan measure to incrementally increase the total number of federal district judges to ease rising caseloads. The bill passed the Senate in August but has yet to receive a House vote. Harris hasn't specified whom she might nominate if given the chance. Trump boasts about his first-term nominees and suggests he'll name more people like them. What's nextEven as the election will shape the judiciary, the judiciary may also shape the election. As in 2020, Republicans and Democrats have already asked federal judges, including those on the Supreme Court, to resolve disputes about ballots before Election Day. Their rulings could determine the outcome of a close race. Perhaps related, Americans' faith in the courts has eroded in the Trump era. Unpopular rulings on elections, abortion, presidential immunity, guns and other issues — as well as the criminal cases against Trump, which will likely move forward if he loses — have driven down public trust in the Supreme Court and the justice system, polls suggest. That decline may be hard to reverse no matter which candidate prevails — especially if the courts play a role in deciding the winner. For more
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2024/10/31
The Morning: The 2024 stakes for judges
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