This November’s presidential election actually isn’t about which party will control the White House for the next four years, but which party’s ideology will direct the federal judiciary for the next several decades.
The power of a president as defined by Article II of the U.S. Constitution is relatively limited. They have the ability to sign and veto bills from Congress. They can dictate foreign policy, appoint ambassadors, and decide how the U.S. will approach its relationships with other countries around the world. As commander-in-chief of the U.S. military, they are the top civilian officer, though their powers are more like an admiral or a general and they can’t commit U.S. troops to foreign soil without a declaration of war from Congress.
But the most significant role of a president is to appoint federal judges (who must then be confirmed by the Senate). This power is most visible in the power of presidents to appoint members of the Supreme Court of the United States (SCOTUS). A president’s legacy is arguably best understood not by the impact the bills they signed into law had on the country, but in the decisions handed down by the Supreme Court justices they appointed. When voters cast their ballots this fall, they should be keenly aware that they are likely voting for the ideological makeup of the nation’s highest court for potentially the rest of our lives.
There is no more powerful institution than SCOTUS
When combining the ability of the nation’s highest court to overrule both the president and Congress, the finality of its decisions (the Supreme Court’s caseload is almost entirely made up of appeals from lower courts and is the final step in the appeals process), the almost insurmountable difficulty in removing them, and the fact that its members serve for far longer than any individual president’s administration, its nine members are easily by far the most powerful people in the United States.
Just in its last term alone, SCOTUS issued numerous controversial rulings that will fundamentally reshape the country for untold years and decades to come. In a list of the 15 most consequential decisions this term, the Guardian found that the Court’s six conservative judges almost always voted with the majority, meaning that judges hand-picked by the last three Republican presidents – two of whom didn’t even win the popular vote — are leaving a lasting imprint on government and society that will last far beyond any individual presidency.
Here are five of the more notable decisions SCOTUS issued this term:
- Justices overturned 40 years of precedent with its decision in the Loper Bright v. Raimondo case to scrap the Chevron Doctrine — in which courts had typically allowed matters concerning federal regulations to be determined by experts working within federal agencies.
After that decision, those decisions will be decided instead by the judiciary despite their lack of expertise in the minute details of complex government regulations. This lack of experience was on full display in the Ohio v. Environmental Protection Agency case when Justice Neil Gorsuch (R-Trump*) mistakenly referred to the pollutant nitrogen oxide as nitrous oxide (the laughing gas administered by dentists).
- The City of Grants Pass v. Johnson case made it so homeless people can be fined and jailed for sleeping outside, even though they have no inside to go to by nature of being homeless. Even though the decision was upholding the constitutionality of an Oregon city’s anti-homeless law, other cities will almost certainly follow suit by ticketing and arresting homeless people for the crime of not having a place indoors to lay their head.
- In Ohio v. Environmental Protection Agency, the Court’s conservative bloc put a hold on the EPA’s attempts to enforce states’ “good neighbor” statutes, which fine neighboring states whose pollutants drift across state lines. While the decision kicked the matter of how to enforce regulations back to the lower courts, it nonetheless marked a blow to the federal government’s abilities to regulate environmental pollution.
- All six conservatives ruled that the federal government’s ban on bump stocks was unconstitutional under the 2nd Amendment in the Garland v. Cargill case. The ban was put in place after a gunman with an AR-15-style rifle equipped with a bump stock massacred 58 people and injured nearly 500 more in Las Vegas, Nevada in 2017, making it the deadliest mass shooting in U.S. history.
In the video of the shooting captured by bystanders, the gunfire sounds automatic, as a bump stock allows for a trigger to be pulled at a rate resembling that of a machine gun. But the Court’s conservative bloc ruled bump stocks don’t make semiautomatic weapons into fully automatic weapons, meaning the federal government can’t regulate them as such. It’s a near-certainty that more deadly mass shootings will be carried out with bump stocks in the future.
- And of course, the Trump v. United States ruling stated that presidents have absolute broad immunity from criminal prosecution for all official acts. The Court’s six conservative justices who sided with former President Donald Trump technically left it up to lower court judges to decide what constitutes an “official act,” though in oral arguments, attorneys representing Trump suggested that a president having a political opponent assassinated could be defined as an official act.
In her dissent, Justice Sonia Sotomayor (D-Obama) effectively confirmed that Trump v. United States now means sitting presidents have the power to murder their opponents or even carry out a “military coup” to hold onto power after losing an election without being prosecuted. Princeton University history professor Sean Wilentz compared the case to the Dred Scott v. Sandford case — in which the Court ruled that Black people were to be considered property instead of human beings — in calling them two of the worst SCOTUS decisions in history.
And of course, these decisions came from just one term: Since Chief Justice John Roberts (R-Bush 43) has been in his role, his Court has been regarded as the most conservative in roughly a century. His tenure has included decisions significantly curtailing voting rights for minorities (Shelby County v. Holder in 2013), upholding anti-union right-to-work laws (Janus v. AFSCME in 2018), allowing business to discriminate against LGBTQ+ individuals (Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018), permitting corporations to spend unlimited amounts of money to influence elections (Citizens United v. Federal Election Commission in 2010), and accomplishing a decades-long goal of the conservative movement by overturning the Roe v. Wade decision that first guaranteed abortion rights (Dobbs v. Jackson Women’s Health Organization in 2022), paving the way for states to outlaw abortion entirely.
As powerful as SCOTUS justices are, it’s important to remember they only hear a fraction of the cases decided in the federal courts. In fact, it could be argued that the hundreds of federal judges a president appoints throughout a four-year term are just as consequential.
Presidents appoint hundreds of powerful lower court judges
Article III of the US Constitution, which concerns the federal judiciary, states that the power of the entire court system shall be “vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” And because SCOTUS accepts only 100 to 150 of the roughly 7,000 cases it is asked to hear in a given term, many U.S. District and Circuit Court judges are often the final arbiters of the cases heard in their respective courtrooms.
Federal judges — who are unelected and unaccountable to the public — can serve out their terms for life with impeachment and/or removal effectively impossible to accomplish. In fact, only 15 federal judges have ever been impeached, and only eight have been convicted by the U.S. Senate (and no member of SCOTUS has ever been convicted in an impeachment trial). Every time the Senate confirms a judicial appointment, that’s yet another footprint for a president in the cement of history.
Two of the most notorious judges Trump has appointed to the lower courts are Aileen Cannon of the Southern District of Florida — whom he appointed in his final year in office — and Matthew Kacsmaryk of the Northern District of Texas, who was appointed in 2017. Cannon most recently made headlines for throwing out Department of Justice special counsel Jack Smith’s 37-count felony indictment of Trump for allegedly mishandling classified documents, which was considered the most damning of the four criminal cases against the former president due to the wealth of evidence the DOJ accumulated.
In her 93-page ruling dismissing the case, Cannon cited Justice Clarence Thomas’ (R-Bush 41) argument in Trump v. United States that the special counsel statute used for Smith’s appointment was unconstitutional due to him not being appointed by the president and confirmed by the Senate. This is despite numerous other special counsels like Robert Hur, James Comey, John Danforth, Kenneth Starr, Robert Mueller, and David Weiss — who all freely conducted their investigations and had their findings respected — being appointed under similar circumstances.
Smith has appealed Cannon’s decision to the 11th Circuit Court of Appeals, which has overturned her decisions in the Trump case twice since 2022. However, Trump will likely appeal to SCOTUS in the event the 11th Circuit reverses Cannon, meaning the case could be on hold until June of next year. And that’s assuming Trump doesn’t win the 2024 election and have his appointed attorney general dismiss the case against him outright.
Like Cannon and five of the six SCOTUS conservatives, Kacsmaryk is an alumnus of the far-right Federalist Society, which is effectively the conservative movement’s repository of judges ready for a Republican president to appoint in the event of a judicial vacancy. He notably rejected the FDA’s approval of the abortion drug Mifepristone in 2023 (which SCOTUS overturned in 2024). He also more recently granted far-right Rep. Ronny Jackson (R-Texas) standing to sue President Joe Biden for directing U.S. government funds to the United Nations Relief Works Agency for no other reason than Jackson sometimes visited Israel on occasion.
Extreme judges like Cannon and Kacsmaryk may one day find themselves appointed to a US Circuit Court, whose jurisdictions cover groups of entire states. Kacsmaryk’s district is in the Fifth Judicial Circuit, which is widely considered to be one of the most conservative in the U.S..
In July, the Fifth Circuit ruled in favor of Mississippi in its lifetime ban on felons voting even after serving their time. Fifth Circuit judges also rejected one of the Biden administration’s climate regulations based on SCOTUS overturning the Chevron Doctrine this term. The Fifth Circuit is considered so extreme that even the far-right Roberts Court has consistently reversed its decisions. Conservative columnist Jennifer Rubin wrote in the Washington Post that the Fifth Circuit was considered “the laughingstock of the federal bench” given how often SCOTUS overturned it. And like SCOTUS, all of the Fifth Circuit’s members can continue to issue decisions until they retire or die.
Your vote will influence countless legal decisions
The 2024 election marks a crossroads for the Supreme Court, in that three of its members — Justices Samuel Alito (R-Bush 43), Sotomayor, and Thomas — are in their seventies. Roberts will be 70 years old in January. This means whoever is elected president in November could appoint as many as four new justices to serve alongside the comparatively younger members of the Court like Amy Coney Barrett (R-Trump), Neil Gorsuch (R-Trump), Elena Kagan (D-Obama), and Brett Kavanaugh (R-Trump).
Even though the Court has a 6-3 conservative majority now, that majority is still not set in stone given the advanced ages of Alito and Thomas. It’s likely that both will retire if Trump wins a second term this fall, allowing him to appoint much younger, more conservative judges to replace them (like Cannon and Kacsmaryk). Trump has said “we like people in their 30s” in regard to judicial appointments, because they will have the maximum impact on the judiciary. A second Trump term could ensure a 6-3 far-right supermajority for decades, or even a 7-2 split if Sotomayor’s seat becomes vacant. He could even appoint a new chief justice if Roberts steps down after 2025.
But on the other hand, if Vice President Kamala Harris — the new presumptive Democratic nominee — wins in November, she may have a chance to replace Alito and Thomas, creating a 5-4 liberal majority. This could provide an opportunity for some of the Court’s more odious decisions to be overturned in that four-year window, like Trump v. United States, Dobbs v. Jackson, or even Citizens United v. FEC. And if Sotomayor retires under a Harris presidency, she could appoint a much younger and more liberal replacement and allow that 5-4 majority to become more secure.
American voters are understandably fatigued with hearing the “most important election of our lives” talk every four years. But the stakes of the 2024 election are arguably the highest they’ve ever been since 1860. Both elections came shortly after a reviled Supreme Court decision (Dred Scott v. Sandford in 1857, Trump v. United States in 2024). The 1860 election happened just before the Civil War broke out. Hopefully there won’t be another, though historian Heather Cox Richardson grimly observed in 2023 that one of the two major political parties in the U.S. has been “taken over by a small faction that does not believe in democracy.”
“So, the divisions in our country that are created by politicians who are garnering power and amassing wealth by limiting our access to media… by demonizing the other in our society, something that the elite enslavers did with great success, the people who are taking over the key nodes of our democracy, the Supreme Court, the Senate, those things also happened in the 1850s,” Richardson said. “So you can see a march that looks much like the 1850s in the negative aspects of our lives.”
It’s not hyperbole to say that our ballots this November will determine what our grandchildren read in U.S. history books. 2024 could be described as the most consequential election in shaping the direction of the U.S. for generations. What will the history books read?
*Occupy.com has chosen to designate Supreme Court judges by the president that appointed them and the party that president belongs to, in order to put their decisions in the proper context.
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