The next generation of Republican justices will be even more partisan

The Supreme Court ruled on Friday that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election. This decision should surprise no one because, about two weeks ago, the Supreme Court ruled that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election.That second decision, moreover, followed an even earlier one by Justice Brett Kavanaugh, which ruled that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election. In that matter, Kavanaugh acted alone under a process that allows a single justice to dispose of a case — a process that the justices rarely invoke unless they view a case as so one-sided that there’s no need to formally refer it to their colleagues.SCOTUS, ExplainedGet the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.So, for those keeping track at home, that’s three times that the Supreme Court needed to decide the same exact question in less than three weeks.This happened because of an extraordinary round of defiance by Republican judges in the lower courts. Just minutes after Kavanaugh determined (for the first time) that Missouri cannot use the Republican gerrymander, a Trump-appointed judge in Missouri tried to countermand Kavanaugh’s decision. Then, after the full Court reaffirmed Kavanaugh’s decision, a panel of three Republican appellate judges again tried to reinstate the new maps that the Supreme Court had already twice rejected.These judges’ behavior is disturbing. But it is also potentially a window into the future of the Supreme Court — at least if Republicans keep winning elections that allow them to fill seats on the federal judiciary.The lower federal courts are gravid with ambitious Republican judges who reach conclusions that are either too extreme or too partisan for the current Supreme Court — such as the ones they reached in this case. These courts are also full of plausible candidates for a Supreme Court nomination who have shown unwavering loyalty to Trump, the MAGA movement, or the Republican Party — regardless of whether there are legal arguments supporting the GOP’s preferred outcomes.Indeed, one lower court, the US Court of Appeals for the Fifth Circuit, now functions as a kind of think tank for MAGA legal theories that less partisan judges would scoff at in disgust. This is the same court, for example, that attempted to pull the abortion medication mifepristone from the market. It’s a court that declares entire federal agencies unconstitutional. Or that orders thousands of lawfully cast ballots thrown in the trash after the Republican Party asks them to do so. The Fifth Circuit is also frequently reversed from the left by the Supreme Court.That means that, if Republicans hold onto the Senate after the upcoming 2026 midterm elections, Trump will be able to easily identify and confirm Supreme Court nominees who make Justice Samuel Alito, the most partisan member of the current Court, look like an icon of disinterested fairness. And many of these ultra-partisan judges are young enough that they will remain viable Supreme Court candidates in future Republican administrations.Eliminating judicial filibusters transformed who gets nominated to federal judgeshipsAbout 13 years ago, the Senate fundamentally changed how federal judges are confirmed. Prior to late 2013, senators in the minority party could use the filibuster to block any judicial nominee who couldn’t find 60 senators who would support their confirmation. But the Senate voted in November of 2013 to allow judges to be confirmed by a simple majority vote.Both parties have their own narratives blaming the other for this development. Republicans often claim that Democrats’ decision to filibuster a handful of President George W. Bush’s lower court nominees — before the second Bush administration, judicial filibusters were rare — was a major escalation in the partisan war over judicial confirmations. Democrats, meanwhile, blame Republicans for a significant uptick in judicial filibusters under President Barack Obama.In any event, Senate Democrats eventually decided to allow judges to be confirmed by a majority vote after Republicans filibustered all of Obama’s nominees to three vacant seats on the powerful US Court of Appeals for the DC Circuit. That broke a logjam that otherwise would have prevented Obama from filling any of these seats, but it also created a new world where lawyers who wished to become federal judges or justices no longer needed to worry about winning votes from senators in the other party.This new world was apparent immediately after Trump took office the first time in 2017. There was a vacant seat on the Supreme Court, largely because Senate Republicans had held it open for a year until Trump could fill it.During his first term, Trump largely delegated the task of picking judges to the Federalist Society, a kind of bar association for right-wing lawyers. And the Federalist Society was obsessively focused on weakening the power of federal agencies to regulate private business.Trump’s eventual nominee for the open seat, now-Justice Neil Gorsuch, secured his new job by advertising his eagerness to advance the conservative legal movement’s top priority. Shortly before his nomination, Gorsuch wrote a pair of opinions laying out his plan to make federal agencies subservient to the judges. And one of these opinions, according to the journalist David Kaplan, “proved decisive in clinching” the nomination for Gorsuch.In the pre-2013 world, judges with Supreme Court ambitions often avoided making their most controversial views public out of fear that doing so would antagonize other-party senators who they might need to support their confirmation to a higher court. In 2011, for example, Kavanaugh, then a judge, was assigned to a panel considering the constitutionality of Obamacare. But he dodged the key issue in the case, instead claiming that he lacked jurisdiction to rule on whether Obamacare is lawful.After Gorsuch’s anti-regulatory opinions scored him a Supreme Court seat, however, lower court judges took notice. And the most ambitious Republican judges started looking for opportunities to prove their conservative bona fides to the Trump White House. Before 2017, for example, Kavanaugh had avoided taking a public position on abortion. Months after Gorsuch’s confirmation, however, Kavanaugh gave a speech to a conservative think tank signaling that he would be a vote to overrule Roe v. Wade if he were given a promotion.The confirmation process, in other words, now favors candidates who audition for judicial jobs by demonstrating that they are dependable votes on issues that drive their political party. This is especially true for Republican judicial candidates, because the Trump White House has shown such favor toward candidates who are personally loyal to Trump. But Democrats who want a judicial appointment also have similar incentives.Gorsuch got his seat because Republicans, who controlled the Senate in 2016 when Justice Antonin Scalia’s death opened a vacancy on the Supreme Court, refused to confirm anyone that Obama nominated to fill this seat. It now appears, in other words, that no Democrat can get confirmed to the Supreme Court unless their party controls the Senate. So Democrats with Supreme Court ambitions also have no incentive to make nice with Republicans.The way to get a high-powered judgeship is to convince your own political party that you will use that judgeship to advance its goals.Republican judges are openly auditioning for the Supreme CourtGorsuch and Kavanaugh are hardly the only judges who started advertising their ideological and partisan loyalty in an apparent effort to get ahead. The lower courts are now full of judges who write extreme and often needlessly provocative opinions that seem designed to catch the eye of someone in the White House.The Ninth Circuit’s Lawrence VanDyke, for example, is a particularly vulgar judge who was reportedly on Trump’s short list for the Supreme Court during his first term. He’s best known for opinions mocking his colleagues and left-leaning litigants in a tone more often found on MAGA podcasts than in judicial opinions. VanDyke began an opinion about transgender women last March, for example, with the line “this is a case about swinging dicks.”Or consider Andrew Oldham, a Fifth Circuit judge known for his opinions undercutting the First Amendment, attacking voting by mail, and standing up for vaping companies’ ability to sell bubblegum-flavored nicotine products — among other things. Oldham’s chambers is a factory pumping out decisions that even cause many of the Supreme Court’s Republicans to cringe — his vaping opinion was tossed out in a unanimous decision by Alito — but that also align perfectly with the Trump administration’s preferred policy outcomes.The federal judiciary has become a partisan institution. And that means that the future of the courts is on the ballot every two years.Or take Judge James Ho, Oldham’s colleague on the Fifth Circuit, who is also known for his trolly opinions attacking liberal shibboleths. Rather than attempt to summarize Ho’s jurisprudence, I will simply refer readers to my 2023 profile of him: “The edgelord of the federal judiciary.”I could name more judges who behave similarly — I bring up these three largely because they’ve been discussed in the national media as potential Supreme Court candidates if Trump gets to appoint another justice. But there’s no need to belabor the point. The bottom line is that, if a vacancy does open up on the Supreme Court, Trump will have no shortage of judges who appear to have spent their judicial careers looking for opportunities to demonstrate just how eager they are to advance a MAGA agenda, even when that means moving several steps to the right of a Supreme Court dominated by conservative Republicans.Indeed, the Missouri incident reveals just how widespread these sorts of judicial partisans are within the lower courts. None of the Republican judges who tried to reinstate the Missouri gerrymander after it was rejected by the Supreme Court, for example, have received the same attention that VanDyke, Oldham, and Ho have received as possible Supreme Court candidates. One of them, Judge James Loken, is an 86-year-old George H.W. Bush nominee with no prospects whatsoever of getting promoted.But the culture in the lower courts has grown so open to partisan decisionmaking that he, along with two younger colleagues, literally tried to give the Republican Party an extra US House seat after the Supreme Court had told them not to do it twice.Which isn’t to say that every Republican federal judge, or even every Trump appointee, is a partisan hack. One of the most pointed opinions rejecting Trump’s attempt to overthrow former President Joe Biden’s victory in the 2020 election, for example, was authored by Judge Stephanos Bibas, a Trump appointee. But, while Bibas’s opinion in Donald J. Trump for President v. Secretary (2020) was excellent, it also almost certainly guaranteed that he will never become a justice. And it absolutely guaranteed that he will never be nominated by Trump.There’s no good solution to this problemThe biggest reason why America is stuck in this mess is that its two major parties have polarized on the proper role of judges. Even setting aside the youngest generation of hyperpartisan judges, it’s long been the case that any Republican nominated to the Supreme Court will be a reliable vote against causes like abortion rights, affirmative action, and the Voting Rights Act, and an equally reliable vote in favor of the “unitary executive” and for religious conservatives who seek exemptions from state and federal laws. Any Democrat, meanwhile, will take the opposite position on these, and a whole array of other issues where the two parties have consistent positions.This is why restoring the old filibuster rules that existed prior to 2013 will not succeed in moderating the judiciary. If anything, allowing the minority party to filibuster judges again would mean that no one would ever be confirmed to the Supreme Court, because any nominee who is acceptable to one party would be radioactive in the other party.Ultimately, the only effective way to keep people like Oldham, Ho, or VanDyke off the Supreme Court is to elect senators and presidents who do not want them on the Supreme Court. The federal judiciary has become a partisan institution. And that means that the future of the courts is on the ballot every two years.