At least half of the country was surprised by Donald Trump’s victory on election night, and Washington is now scrambling to guess how he will lead in the White House and abroad. But the most lasting effect of the Trump presidency could be his power to shape the Supreme Court, where he has one vacancy to fill now and the possibility of more in the years ahead.

Just how could President Trump reshape the highest court—and the country? If Trump sticks to the list of proposed justices he released during the campaign, the court is likely to look and act similarly to that of any other Republican president. But that doesn’t mean Trump’s appointees won’t have the opportunity to shape the Constitution now and for decades to come. In this regard, Trump might want to be careful what he wishes for: It’s possible that a conservative Trump Court would enforce constitutional checks on powers asserted by President Trump himself.


We’ve already heard what kinds of justices Trump plans to appoint. During the third presidential debate, he described the 21 candidates he had identified on two separate lists as “pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Trump thanked two conservative groups—the Heritage Foundation and the Federalist Society—when he released his short list, and all of the 21 prospective appointees are constitutional conservatives who might be considered by any Republican president. Some stand out as bolder choices than others: Senator Mike Lee, for example, a principled constitutionalist who criticized Trump during the campaign for his proposed “religious test” to ban Muslims, would bring political experience to the court not seen since the appointment of Justice Sandra Day O’Connor. But Lee—who called for Trump to step down as the GOP nominee after the release of Trump’s Access Hollywood tape and cast what he called a “protest vote” for independent candidate Evan McMullin—seems less likely to be appointed than some of the federal and state appellate judges on Trump’s list. Nearly all of those judges—such as Neil Gorsuch and Timothy Tymkovich on the U.S. Court of Appeals for the 10th Circuit—are familiar and respected conservative picks.

In the short term, all of the judges on Trump’s list would restore the balance on the John Roberts court to the 5-4 conservative-leaning split that prevailed before Justice Antonin Scalia’s death in February, with Justice Anthony Kennedy as the swing vote in the center. Trump could further solidify the Roberts court’s conservative majority by filling Scalia’s seat with a much younger justice. For example, Clarence Thomas was in his 40s when he was appointed to the Supreme Court by President George H.W. Bush and has now served for 25 years.

But Trump’s appointee might be more willing to enforce limits on congressional and presidential power than Scalia himself. Many of the younger conservatives on Trump’s list have embraced a posture of judicial engagement rather than judicial deference to the political branches, and many are also more pro-law enforcement on issues involving government searches and seizures than Scalia was.

As a result, the Trump court might pump up Scalia’s decision recognizing the Second Amendment right to bear arms as an individual right and strike down gun restrictions of the kind that are now bubbling up through the lower courts—such as the recent appellate court decision questioning the government’s effort to restrict an elderly man from owning a gun, even though he had been committed to a mental institution 30 years earlier during a brief divorce.

The court might also take up the call to limit the scope of the federal government’s authority. All five conservative justices in the first Affordable Care Act case voted to impose limits on Congress’ ability to regulate the economy. With a Trump justice replacing Scalia, who sometime deferred to executive power, the new president seems more likely to secure that conservative position for decades to come.

The restored conservative majority might also restrict the authority of federal agencies. For example, in a little-noticed anti-regulatory dissent in 2013, Chief Justice Roberts lamented the administrative state’s “thousands of pages of regulations” and criticized “hundreds of federal agencies poking into every nook and cranny of daily life.” (Scalia wrote the majority opinion, professing the need for judicial restraint.) A Trump justice might heed the chief justice’s anti-regulatory call. That means he or she might also vote to repeal or revise Obama-era regulations on climate change, health care, consumer protection and Wall Street—or, at the very least, greenlight the anti-regulatory efforts of President Trump and the Republican Congress, whether through executive actions or new legislation repealing key parts of the Affordable Care Act and Dodd-Frank. Finally, any new conservative justice might even take up Thomas’ call to re-examine the constitutionality of the regulatory state.

It’s possible, of course, that President Trump will have more than one Supreme Court appointment. If liberal Justices Ruth Bader Ginsburg (age 83) or Stephen Breyer (age 78) were to retire during the next four years, we would see a 6-3 conservative majority for the first time since the pre-New Deal era, which ended in 1937. Such a court could have far more dramatic effects than a 5-4 court on constitutional law across a range of areas, for years or even decades to come.

A 6-3 conservative court could cut back on abortion rights by upholding state regulations on abortion clinics and providers, and eventually even strike down Roe v. Wade. (In the third presidential debate, Trump said that because he would appoint pro-life justices, overturning Roe “will happen, automatically in my opinion.”) The Trump Court also could strike down affirmative action programs on the principle that the Constitution is colorblind. It could uphold voter ID laws and continue to deregulate the campaign finance system, striking down disclosure requirements and limits on campaign contributions that the Roberts court has upheld.

A 6-3 Trump Court could cut back on the wall between church and state, allowing greater government support for religious displays in public and greater exemptions for religiously motivated employers from anti-discrimination laws. It could approve rather than cut back on the death penalty. And it could approve stop and frisk and electronic surveillance policies that Trump has endorsed, some of which Scalia had questioned on libertarian grounds that they violated privacy in ways the framers of the Fourth Amendment meant to prohibit. Some of the justices on Trump’s list are more inclined to defer to the police than Scalia himself.

Could a Trump Court check the Republican Congress and President Trump? It’s certainly possible. Conservative justices could restrict Congress’ spending power and the power to regulate interstate commerce; embrace an anti-regulatory agenda that restricts congressional delegation of authority to federal agencies supervised by the president; and reject Trump proposals to “open up our libel laws” or restrict Muslim immigration. A Trump Court might also question the president’s unilateral executive orders restricting immigration, just as it had questioned unilateral orders expanding immigration by President Barack Obama.

It’s possible, of course, that President Trump could stray from the 21 names on his well-vetted list: The Silicon Valley billionaire libertarian Peter Thiel told friends during the campaign that he had been vetted by Trump’s team for a possible Supreme Court appointment. But Senate Republicans would balk at any wild cards sent over by President Trump, making it more likely that he will stick with one of his original names. In all likelihood, those conservative constitutionalist judges would impose at least some limits on congressional and executive actions. For that reason, a Trump Court might ultimately be the greatest protection against any constitutional excesses of a Trump presidency.