Meet the Extremist Trump Judges Likely to Shift the Supreme Court Even Further Right

In his first term, Donald Trump reshaped the federal courts in his image, installing far-right jurists at every level of the judiciary and securing a conservative supermajority on the Supreme Court. His second term will cement that legacy, likely locking in the Supreme Court’s hard-right bloc for generations. Over the next two years, we should expect the two oldest justices, Samuel Alito and Clarence Thomas, to step down—and for Trump to replace them with two of the most unabashed partisans the court has ever seen. These justices will make Trump’s first three appointees look moderate by comparison. And their elevation will thwart Democrats’ hope of recapturing or rebalancing the court for the foreseeable future.

Publicly, neither Alito nor Thomas has indicated that they intend to step down soon. But as the New Republic’s Matt Ford pointed out on Wednesday, Alito’s wife, Martha-Ann, recently suggested on a secret recording that he would retire soon. As the most partisan justice on the court today, Alito does seem primed to retire under Trump, probably this summer, to ensure an equally hard-right successor. Similarly, Thomas has shown himself to be a staunch Trump loyalist, going far out of his way to shield the former president from investigations and prosecutions. His solo votes and opinions reflect the most acute MAGA bias of any justice. Plus, his wife, Ginni, is an enthusiastic Trump supporter who lobbied to overturn the 2020 election and had an open invite to Trump’s White House. The Thomases are savvy enough to realize that the justice’s legacy depends on him stepping down at the right time. That moment is not far off.

Who will replace them? For years now, Trump’s appointees to the lower courts have been auditioning for SCOTUS, jostling to prove their loyalty to the man himself as well as the MAGA version of legal conservatism. There are plenty of loyal footsoldiers to pick from. But to replace Alito and Thomas, conservative lawyers have zeroed in on two Trump appointees to the U.S. Court of Appeals for the 5^th Circuit: Andrew Oldham for Alito and James Ho for Thomas.

Both fit the MAGA mold perfectly: They hold far-right views and troll their critics with bristling contempt. Both, of course, are longtime members of the Federalist Society. Oldham served as deputy solicitor general of Texas, while Ho served as solicitor general of the state. In that capacity, both men spearheaded or joined politically charged lawsuits against the Obama administration. And after donning the black robes, they helped transform the 5^th Circuit into a factory for fringe conservative theories.

A sampling of their opinions tells the story. Just before the election, Oldham authored a shocking and incoherent opinion, which Ho joined, declaring that it is illegal for states to count mail ballots that are cast by Election Day. (This conclusion, if correct, would nullify hundreds of thousands of ballots in nearly 20 states.) Last year, both Oldham and Ho tried to force the Food and Drug Administration to roll back access to mifepristone, the first drug in a medication abortion. Ho argued that it should be taken off the market completely, and that providers who mail it to patients are committing a federal crime. He also argued, trollishly, that anti-abortion doctors had standing to challenge mifepristone’s approval because they “delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.” (The Supreme Court did not agree.) Ho, who previously did work for the Christian nationalist First Liberty Institute, takes frequent pot shots at reproductive rights, once condemning abortion as a “moral tragedy” in an opinion.

They’re this extreme on pretty much every other issue, too. Oldham wrote an opinion arguing that the Biden administration’s restrictions on ghost guns, untraceable weapons disproportionately used in crime, violated Americans’ time-honored tradition of “gunsmithing.” Ho claimed in July that migrants seeking asylum at the border constituted a foreign “invasion” against whom individual states could use force over federal opposition. Oldham joined an opinion suggesting that the entire Consumer Financial Protection Bureau is unconstitutional (which SCOTUS rejected). Ho voted to strike down a federal law barring domestic abusers from owning guns, writing that angry wives would exploit the statute, falsely accusing their husbands of abuse to secure an advantage in divorce proceedings. (Again, SCOTUS disagreed, dismissing this concern as a “straw man.”) Both men pepper their opinions with provocative charges and turns of phrase that seem designed to offend liberals—as when Ho railed against “a woke Constitution.” Ho has also boycotted clerks from Yale Law School over the institution’s alleged “cancel culture” and Columbia University for allegedly acting as an “incubator of bigotry” by allowing controversial pro-Gaza protests.

And on and on it goes. The upshot is simple: These two judges share Trump’s fondness for owning the libs, and will not waver from the conservative line. They will not recognize LGBTQ+ employees’ rights under federal law, as Justice Neil Gorsuch did. They will not respect the Voting Rights Act’s mandate for racial fairness in redistricting, as Justice Brett Kavanaugh did. They will not vote to allow the prosecution of Jan. 6 insurrectionists for obstruction, as Justice Amy Coney Barrett did. There will be no surprises from Oldham and Ho. They will do what they’re put on the court to do: promote the Republican Party’s interests under the guise of judicial review.

But then, of course, there are few if any surprises from Alito or Thomas, either. So what difference would Oldham and Ho make? First, they might help shift the court’s center of gravity to the right. Alito and Thomas do not appear to make much effort to win over their colleagues when they stake out fringe positions. Oldham and Ho are far younger, part of the same generation that Gorsuch, Kavanaugh, and Barrett belong to. They rose up in the same Federalist Society circles. While Alito and Thomas seem to have mostly given up on building coalitions, Oldham and Ho could make a play for votes from the new center of the court, which is already very conservative.

Their relative youth points to the second difference: Both men could easily serve for 30 years or more. That fact alone may quash Democratic hopes of shifting the court leftward during this half of the 21^st century. Before Tuesday, progressives’ best hope was for Alito or Thomas to retire or die under a Democratic president. That will not happen. Once they’re replaced, the window will be more or less closed. At 69, Chief Justice John Roberts has plenty of time left to calibrate his retirement for a like-minded successor. And if he feels compelled to retire under Trump, that swap would push the court even further to the right.

Republicans play the long game with the courts. They had a singularly crucial insight: If you stack the courts with partisans, it doesn’t matter if your policies are too unpopular to pass through the democratic process; they can be imposed by the judiciary instead. It now seems fair to conclude that the GOP has won this game. The Supreme Court is, by historical standards, extraordinarily conservative today. On Tuesday, the American people gave Trump an opportunity to cement that reactionary status for a long, long time.