“In the Mold of Justice Scalia”: The Contours & Consequences of the Trump Judiciary

Abstract

Abstract This article reviews the causes, contours and potential consequences of President Donald J. Trump’s 234 appointments to the federal judiciary. The causes will be familiar to political scientists who are fond of reminding people that “elections have consequences” and that the “Supreme Court [and by extension entire federal judiciary] follows the election returns.” The contours of the Trump Judiciary are congruent with Trump’s campaign promise to appoint judges “in the mold of Justice Scalia,” the conservative legal icon who died suddenly in February 2016. We show how Trump and Senate majority leader Mitch McConnell made good on this promise with the help of the Federalist Society for Law and Public Policy Studies, appointing ideologically conservative, young, and mostly male and white judges to lifetime appointments on the federal bench. In laying out the potential consequences of Trump’s remaking of the federal judiciary, we outline three areas where these judges are likely to make an impact on law and politics in the coming decades: rolling back liberal and progressive victories in the culture wars, likely in more subtle ways that align with Alison Gash’s concept of “below-the-radar” legal change; extending the federal deregulation campaign that began in earnest with the Reagan Administration; and issuing rulings in the areas of voting rights, campaign finance, and redistricting that tip the scales of democracy in favor of Republican electoral outcomes.