There will be endless ink spilled over the 2024 election, trying to sort out the overlapping reasons why the world’s oldest democracy placed its fate in the hands of a would-be strongman who promises to dismantle democratic norms. There are many culprits—rising costs, raw white supremacy—but among them, let’s not forget the role of Chief Justice John Roberts and the US Supreme Court.

Under Roberts, American democracy felt humiliating, looked like a joke, and became increasingly tenuous.

The Supreme Court has become a major force in American politics in recent years. Increasingly, it has stepped in not just to decide questions of legal importance, but to resolve heated partisan disputes. From abortion and gun rights to gerrymandering and voting rights, the justices have become the arbiters of our toughest political questions. This wasn’t a sudden change, though it has accelerated in the last four years, leaving Americans as the proverbial frog in the pot. The water is now boiling.

Why Americans chose a demagogue to helm their democracy may be partially explained by the fact that, in many ways, the United States isn’t a democracy any longer—and in many ways, that’s thanks to the Roberts court. Our system was never perfect; on a basic level, the US only became a democracy in 1965 when it finally gave all Black people the right to vote.

But for nearly two decades, Roberts and his colleagues have done immense damage to the underpinnings of the democracy Americans painstakingly built. They have reallocated political power from ordinary citizens to billionaires, worsened congressional paralysis, and transformed many elections into meaningless exercises. If you are looking to explain why America picked Trump, you could do worse than look to these five Roberts-era Supreme Court cases that weakened our democracy and faith in government. After all, voters seem to have decided that when there’s so little to protect, there’s much less to lose.

Citizens United

To understand why elections are now so expensive—and why Trump’s campaign in particular was waged with money from outside billionaires—you have to go back to January 2010, when a 5-4 majority set the country on a new political path. The court’s Citizens United decision allowing corporations to spend unlimited sums to elect candidates of their choosing was expanded two months later by an appeals court ruling allowing anyone to contribute infinite amounts of money, including untraceable money, to influence elections. 

One of the most destructive forces in American politics in the last several years is how much is spent on them—and by whom. The 2024 election cycle was (in a record that is reliably reset every four years) the most expensive in US history. The presidential race alone garnered nearly $2.7 billion in donations, with the money raised split almost evenly between the candidates’ campaigns and outside groups attempting to influence the outcome. Former President Donald Trump’s campaign was powered by outside money, which totaled more than $710 million—compared to the $380 million his campaign took in directly. Eight years earlier, in 2016, Trump raised $333 million while outside spending on his behalf totaled just $100 million. 

In his majority opinion in Citizens United, Justice Anthony Kennedy justified dispensing with a century of campaign finance limitations by arguing that outside spending—money not given directly to a campaign—does not create the only kind of corruption he considered valid: a quid pro quo. “Independent expenditures do not lead to, or create the appearance of, quid pro quo corruption,” Kennedy insisted.

Compare Kennedy’s words to what we just witnessed. In April, Trump promised oil executives he would roll back environmental regulations if they spent $1 billion to reelect him, which looks awfully like the quid pro quo scenario Kennedy denied was possible. In what appeared to be a concession to a billionaire backer, Trump changed his position on banning TikTok after meeting with Jeff Yass, a key investor in the app, who gave to pro-Trump outside groups. And then there’s Elon Musk, the world’s richest man, who spent nearly $120 million late in the election backing Trump. Musk wanted the job of deciding which government regulations to eliminate, and, in September, Trump promised it to him. And Trump, ever obsequious to his biggest (outside) donor, praised Musk in his victory speech as a “genius” and a “star.” Never have billionaires played such a visible and important role in an American election, nor been promised so much in return.

It didn’t take long for the fallout of Citizens United to reallocate political power toward the richest Americans. (And through dark money groups, possibly wealthy foreigners too.) By 2015, a small coterie of the uber-rich were bankrolling a growing share of political spending. “In a time of historic wealth inequality, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of citizens is of relatively little value,” campaign finance expert Daniel Weiner wrote that year when assessing the decision’s impact.

That kind of democratic disenchantment can feed into authoritarian movements—even if they promise, like Trump’s, to further widen gaps in economic and political power.

Shelby County

Just three years after Citizens United, Roberts did something he’d been wanting to do since his days as a fresh-faced Reagan administration attorney: Gut the Voting Rights Act. The 1965 law had become the lynchpin of America’s multiracial democracy, but Roberts’ opinion in Shelby County v. Holder excising a powerful provision set the country back. 

In his majority opinion, Roberts jettisoned the law’s preclearance regime, which required advance federal approval of changes to election procedures in areas with a history of voter suppression, including most of the south. As justification, he wrote that the country had changed and no longer needed such a strong federal intrusion to protect voting rights. Justice Ruth Bader Ginsburg analogized Roberts’ logic to “throwing away your umbrella in a rainstorm because you are not getting wet.”

She was right. Unshackled, states rushed to implement restrictions on voting. Last year, on the 10-year anniversary of the decision, the Brennan Center for Justice counted at least 94 voter suppression laws across 29 states. It ushered in our current era of discriminatory voter ID laws, polling place changes, restrictions on mail-in ballots, and more. In Alabama, one of several states with new voter suppression laws, the Brennan Center found that the turnout gap between Black and White voters tripled after the court’s decision, from 3 percent in 2012 to 9 percent in 2022, a difference of tens of thousands of voters. In subsequent cases, Roberts continued to remove the VRA’s protections. This election cycle, the Republican Party fabricated a false narrative of non-citizens voting, in part to justify imposing or keeping burdensome proof of citizenship requirements when registering or voting. This is the next frontier of voter suppression—and the Supreme Court weighed in August with a thumbs up. 

The court has also greenlit efforts to purge voter rolls in a manner that disproportionately affects poor and minority voters. In 2024, Trump and his allies launched discredited lawsuits seeking to force purges across the country, with the Supreme Court stepping in to allow one such purge despite a federal law prohibiting it so close to the election. 

The Roberts court’s decisions also changed the experience of voting; many of the same urban voters of color who, in polls, expressed low confidence in American democracy and seem to have turned to Trump, also experienced the worst of the Shelby County fallout, including prohibitively long voting lines. In their communities, American democracy felt humiliating, looked like a joke, and was increasingly tenuous.

Rucho v. Common Cause

Gerrymandering has always been an issue in American politics. But in recent years, it’s become a serious problem. After Republicans’ well-timed nationwide sweep to power in 2010—the year of a decennial census, which is followed by redistricting—they drew political maps that aimed to lock in their majorities indefinitely. Thanks to unprecedentedly sophisticated computer models and granular data, their gerrymanders delivered historically lopsided results, distorting the partisan make-up of both state legislatures and Congress. A chorus of voices called on the Supreme Court to set some limits—and it appeared poised to do so.

But when a related case presented itself to the justices in 2017, Roberts wrote an opinion declining to touch the issue on a technicality. A year later, with Kennedy, one of the court’s sometime swing votes, replaced by Trump-appointee Justice Brett Kavanaugh, Roberts blessed partisan gerrymandering. Federal courts, he ruled, must stay out of the way. 

The result is that several states have gotten away with partisan gerrymandering that not only warps their states’ politics, but also their congressional delegations—and with it, which party controls the House. The Brennan Center estimates that this cycle, gerrymandering gives Republicans a 16-seat advantage in the House of Representatives. That margin may be enough to determine which party controls the chamber next year—and consequently, whether Trump will have any check on his authoritarian ambitions.

There’s another way gerrymandering’s warping effect paved the way for Trump. Rather than competitive districts, conservatives in Congress are ensconced in bright red ones, only afraid that a more conservative challenger will come along. In the years after 2010, and coinciding with Citizens United, polarization deepened as more moderate Republicans were replaced with adherents of the Tea Party movement—the antecedent to Trumpism. 

Biden v. Nebraska

By unleashing a gusher of money and allowing abuses of voting rights, the Roberts Court has made Congress more polarized and dysfunctional—essentially hobbling a co-equal branch of government. While politicians always campaign on policies they can’t or won’t deliver, if some voters soured on the Democrats because they didn’t do enough of what they promised, they may have been experiencing a very real effect of Congressional paralysis. 

Student loan forgiveness is a perfect example: Biden wanted to keep his commitment to forgive some federal student debt, but getting it through Congress was a nonstarter. Finally, Biden’s Department of Education used its own authority to forgive $400 billion in student debt. 

Not so fast, said John Roberts. In Biden v. Nebraska, Roberts blocked Biden’s loan forgiveness plan. To do this, he used a new doctrine the conservative justices had recently begun deploying to justify stepping in to stop executive policies they dislike. If voters are mad Biden didn’t deliver more on student loan forgiveness, they should be mad at Roberts and his colleagues. 

The loan forgiveness program is a vivid example of a larger problem. Between congressional dysfunction and judicial veto, it’s hard to get stuff done. What’s the point in preserving a system where the policies politicians campaign on disappear into the ether? It’s certainly not a system that inspires trust.

Trump v. United States

After Trump lost the 2020 election, he attempted to stay in office by plotting to overturn the will of the voters, culminating in a violent insurrection at the US Capitol. In the summer of 2023, special counsel Jack Smith brought charges against him for his role in the scheme. A trial was scheduled for March 2024, during the Republican primaries. But the Supreme Court was there to help Trump.

The ex-president tried to delay and ultimately derail the trial by claiming that he is immune from prosecution for official acts made while in office. It was an outlandish claim. (Just imagine: a coup attempt is an unpunishable offense?) Between December 2023 and July 2024, the Supreme Court took multiple steps to delay the resolution of the immunity question, each time pushing a trial date further and further down the road, helping Trump sail through the primaries and, as the general election got underway, making it less likely a trial would happen before November.

Then, on July 1, John Roberts released a stunning opinion. He bought Trump’s argument—hook, line, and sinker. Former Presidents are now immune from criminal prosecution for anything deemed an official act. Even evidence of a crime is inadmissible if it involved official acts. The court, with Roberts in the lead, had not only removed a serious impediment to Trump’s reelection efforts—but ensured that should Trump return to the White House, he would do so with more power than any president ever before. Justice Sonia Sotomayor’s chilling dissent laid out the stakes: “When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Now, we are there. Trump will be president again, immune from criminal liability, surrounded by loyalists, and likely with the GOP in control of Congress. In his first term, the Supreme Court was often called upon to limit Trump’s worst—and most obviously illegal—actions. But that was a different iteration of the Roberts court: In 2017 and 2018, it still had Kennedy and Ginsburg. Today, thanks to three Trump appointees, it has a hard right 6-3 majority.

When we think about the darkness of Trump’s second term agenda, from detaining millions of immigrants in camps to prosecuting his political rivals to using the US military to put down anti-Trump protests, we have to think about what the Supreme Court will do. As Georgetown Law professor Steve Vladeck wrote in his substack, One First, “it seems more than likely that the Supreme Court—this Supreme Court—will be the only institution standing between Trump and…whatever Trump wants to do.” 

Roberts significantly shaped Trump’s campaign and the democracy we have today. Now that he will be one of the only Americans with power to temper Trump’s worst impulses, remember that he already enabled them.

The Republican Party is on track to win control of the Senate, a significant victory that will allow the GOP to exercise power over judicial appointments and executive branch appointees.

If Trump retakes the White House, GOP Senate control will clear his path to make significant changes to the judiciary, including possibly appointing multiple Supreme Court justices. A GOP Senate is also likely to handily approve his Cabinet picks and other appointments, allowing Trump to place loyalist allies throughout the government.

The Senate map favored Republicans, and left Democrats on defense.

If Vice President Kamala Harris wins, a Republican Senate would block her judicial picks, possibly her Cabinet picks, and her legislative priorities.

The Senate map favored Republicans this cycle. While Democrats were more broadly on the defense, only three Republicans were in tight reelection races, and all three were in red states where the incumbent Republican was likely to win. Meanwhile, with the retirement of West Virginia Democrat Joe Manchin, Republicans were destined a pickup in the GOP-voting state. His decision not to seek reelection almost guaranteed, at minimum, a tied Senate, and the GOP still had several prospects for picking up new seats.

Several vulnerable Democrats were running for reelection in swing states and red states, providing Republicans with many opportunities to pick up seats and secure a majority. In Ohio, incumbent Democrat Sherrod Brown, a progressive and longtime union ally, lost his race to Bernie Moreno, who made millions running a car dealership empire with a history of worker exploitation. Sen. Tammy Baldwin in Wisconsin ran against Eric Hovde, another millionaire whom she attacked for spending most of his time in California.

And while the overall map was difficult for Democrats, in the final months of the race, it became clear that Republican Sen. Deb Fischer, from the solidly red state of Nebraska, was in a surprisingly tight race against independent Dan Osborn.

It started with Georgia: a handful of bomb threats sent to polling locations in heavily Democratic areas. Two polling sites in Union City outside Atlanta, where the population is nearly 90 percent Black, were temporarily shut down. Georgia officials, citing federal law enforcement, named Russia as the culprit, as the threats had come from that nation’s email domains.

As Election Day went on, the threats kept coming, causing polls to close and evacuate for short periods. It seems Russia was brazenly interfering on Trump’s behalf, as it has in the past—but more openly this time.

There have been dozens of bomb threats today in blue areas around Atlanta. In Fulton County, the police chief said law enforcement had responded to 32. Multiple precincts faced temporary closures. “They don’t want us to have a smooth, fair, and accurate election,” said Secretary of State Brad Raffensperger.

The threats targeted Democratic areas in other swing states as well. Several were sent to Arizona’s Navajo County, where many Native Americans vote. (Secretary of State Adrian Fontes also blamed Russia.) The critical “Blue Wall” states of Michigan, Wisconsin, and Pennsylvania received threats too, as did Minnesota, Maine, and Ohio, according to various reports. “The FBI is aware of bomb threats to polling locations in several states, many of which appear to originate from Russian email domains,” the agency said in a statement. “None of the threats have been determined to be credible thus far.”

If Russia is indeed the culprit, it means President Vladimir Putin feels sufficiently emboldened to help Donald Trump openly on Election Day by attempting to disenfranchise Democratic voters. This effort follows the recent disinformation of viral videos by a Russian-backed propaganda outfit. As Mother Jones has reported, evidence links a Moscow-backed disinformation unit to fake videos stoking fears of voter fraud in recent weeks. One of the videos purported to show recent Haitian immigrants voting for Kamala Harris in Georgia; in another, Haitian immigrants brag about voting in multiple precincts in the state. A third bogus video shows mail-in ballots for Trump being destroyed in Pennsylvania.

Putin would clearly prefer to have Trump in the White House. The former president has said he would broker peace between Russia and Ukraine, which would be a win for Russia, has questioned America’s membership in NATO, and is generally solicitous of Putin and other authoritarian leaders. Harris, on the other hand, has stated her commitment to supporting Ukraine and strengthening NATO.

In the wake of the bomb scares, the US intelligence community has warned that Putin’s goal is to sow chaos and distrust in the democratic process. They don’t expect Russian interference to go away just because Election Day is winding down. “If chaos is the point,” Chris Krebs, former director of the federal Cybersecurity and Infrastructure Security Agency, told the Washington Post, “the most opportune window to create mischief is the post-November 5th pre-certification period.”

The Republican Party is on track to win control of the Senate, a significant victory that will allow the GOP to exercise power over judicial appointments and executive branch appointees.

If Trump retakes the White House, GOP Senate control will clear his path to make significant changes to the judiciary, including possibly appointing multiple Supreme Court justices. A GOP Senate is also likely to handily approve his Cabinet picks and other appointments, allowing Trump to place loyalist allies throughout the government.

The Senate map favored Republicans, and left Democrats on defense.

If Vice President Kamala Harris wins, a Republican Senate would block her judicial picks, possibly her Cabinet picks, and her legislative priorities.

The Senate map favored Republicans this cycle. While Democrats were more broadly on the defense, only three Republicans were in tight reelection races, and all three were in red states where the incumbent Republican was likely to win. Meanwhile, with the retirement of West Virginia Democrat Joe Manchin, Republicans were destined a pickup in the GOP-voting state. His decision not to seek reelection almost guaranteed, at minimum, a tied Senate, and the GOP still had several prospects for picking up new seats.

Several vulnerable Democrats were running for reelection in swing states and red states, providing Republicans with many opportunities to pick up seats and secure a majority. In Ohio, incumbent Democrat Sherrod Brown, a progressive and longtime union ally, lost his race to Bernie Moreno, who made millions running a car dealership empire with a history of worker exploitation. Sen. Tammy Baldwin in Wisconsin ran against Eric Hovde, another millionaire whom she attacked for spending most of his time in California.

And while the overall map was difficult for Democrats, in the final months of the race, it became clear that Republican Sen. Deb Fischer, from the solidly red state of Nebraska, was in a surprisingly tight race against independent Dan Osborn.

It started with Georgia: a handful of bomb threats sent to polling locations in heavily Democratic areas. Two polling sites in Union City outside Atlanta, where the population is nearly 90 percent Black, were temporarily shut down. Georgia officials, citing federal law enforcement, named Russia as the culprit, as the threats had come from that nation’s email domains.

As Election Day went on, the threats kept coming, causing polls to close and evacuate for short periods. It seems Russia was brazenly interfering on Trump’s behalf, as it has in the past—but more openly this time.

There have been dozens of bomb threats today in blue areas around Atlanta. In Fulton County, the police chief said law enforcement had responded to 32. Multiple precincts faced temporary closures. “They don’t want us to have a smooth, fair, and accurate election,” said Secretary of State Brad Raffensperger.

The threats targeted Democratic areas in other swing states as well. Several were sent to Arizona’s Navajo County, where many Native Americans vote. (Secretary of State Adrian Fontes also blamed Russia.) The critical “Blue Wall” states of Michigan, Wisconsin, and Pennsylvania received threats too, as did Minnesota, Maine, and Ohio, according to various reports. “The FBI is aware of bomb threats to polling locations in several states, many of which appear to originate from Russian email domains,” the agency said in a statement. “None of the threats have been determined to be credible thus far.”

If Russia is indeed the culprit, it means President Vladimir Putin feels sufficiently emboldened to help Donald Trump openly on Election Day by attempting to disenfranchise Democratic voters. This effort follows the recent disinformation of viral videos by a Russian-backed propaganda outfit. As Mother Jones has reported, evidence links a Moscow-backed disinformation unit to fake videos stoking fears of voter fraud in recent weeks. One of the videos purported to show recent Haitian immigrants voting for Kamala Harris in Georgia; in another, Haitian immigrants brag about voting in multiple precincts in the state. A third bogus video shows mail-in ballots for Trump being destroyed in Pennsylvania.

Putin would clearly prefer to have Trump in the White House. The former president has said he would broker peace between Russia and Ukraine, which would be a win for Russia, has questioned America’s membership in NATO, and is generally solicitous of Putin and other authoritarian leaders. Harris, on the other hand, has stated her commitment to supporting Ukraine and strengthening NATO.

In the wake of the bomb scares, the US intelligence community has warned that Putin’s goal is to sow chaos and distrust in the democratic process. They don’t expect Russian interference to go away just because Election Day is winding down. “If chaos is the point,” Chris Krebs, former director of the federal Cybersecurity and Infrastructure Security Agency, told the Washington Post, “the most opportune window to create mischief is the post-November 5th pre-certification period.”

The morning of Election Day, Georgia Secretary of State Brad Raffensperger blamed Russia for creating bomb scares at polling places in the swing state of Georgia. “They’re up to mischief it seems,” Raffensperger said at a press conference of Russia’s efforts. “They don’t want us to have a smooth, fair, and accurate election.”

The bomb threats temporarily closed two voting sites in Union City, Georgia, just outside Atlanta, according to the Election Protection Coalition, which monitors Election Day disruptions. Union City is nearly 90 percent Black and therefore tends to be overwhelmingly Democratic. The county is attempting to extend voting hours at the affected locations.

Five non-credible bomb threats were called in on Tuesday morning. Raffensperger said Russia was the culprit and that federal law enforcement had helped make that determination.

The presidential race in Georgia is expected to be very close and it is one of the states that could determine who wins the White House. Russian President Vladimir Putin has a clear interest in former president Donald Trump retaking the White House. Trump is much more interested in appeasing Putin’s war in Ukraine, has expressed little loyalty to other allies, and is generally solicitous of the authoritarian leader. Vice President Kamala Harris, conversely, has stated her commitment to supporting Ukraine as well as strengthening NATO.

Georgia appears to be a target of Russian meddling this year. A fake video purporting to show recent Haitian immigrants illegally voting for Harris in the state was produced and disseminated by a Russian disinformation outfit, US intelligence officials revealed last week. And this is only the most recent example of a months-long effort by Russian-backed propaganda to target the Harris campaign. As Mother Jones previously reported, the disinformation group responsible for the Georgia video also is believed to be behind another fake video purporting to show ballots for Trump being destroyed in Pennsylvania.

On Friday evening, just as reporters were logging off, the Supreme Court let slip a clue about whether it would take up cases that could determine the outcome of a close election in the coming weeks. Specifically, the hint came in a statement from Justice Samuel Alito. Spoiler: He’s open to it.

Alito’s missive came as the Supreme Court declined to take up a case over mail-in ballots in Pennsylvania. The Republican National Committee had asked the court to throw out a Pennsylvania Supreme Court decision allowing voters who had forgotten to place their mail-in ballot into a secrecy envelope to vote a provisional ballot. By declining to weigh in, the Supreme Court allowed some valid Pennsylvania voters who made a mistake in returning their mail-in ballots to still vote. The RNC had asked the US Supreme Court to stop them.

In response, the justices unanimously declined to disenfranchise these voters and created the impression of a win for Democrats and more expansive voting rights. Technically, this is true. But as a signal of whether the justices intend to meddle in the outcome of the election, the message was muddled by Alito’s writing.

Typically, the justices wouldn’t have considered such a case, because the Supreme Court isn’t supposed to second guess state court interpretations of a state law. But these are not normal times. Last year, the justices decided that second-guessing state courts was within their remit if the state law they were interpreting was election-related. In Moore v. Harper, the Supreme Court gave itself the authority to intervene in state election law matters if a state court’s decision “transgress[ed] the ordinary bounds of judicial review” at the expense of state legislative power. It’s a vague and untested standard, and this is the first election under this new precedent. The Supreme Court now has become a Sword of Damocles hanging over every state court decision concerning election procedures.

The Supreme Court now has become a Sword of Damocles hanging over every state court decision concerning election procedures.

In a statement accompanying the court’s order, Alito agreed with the rest of the justices not to take the case but chalked it up to the facts of the case, which he said constrained the court’s ability to give the RNC their requested relief of banning provisional ballots for spoiled mail-in ballots. Justices Clarence Thomas and Neil Gorsuch joined Alito’s statement. In the past, problems with the facts have not stopped the court’s conservative wing from taking on and deciding any case it wanted to. There’s the website designer who wanted to discriminate against a client who didn’t exist; the football coach who claimed he prayed alone when pictures showed him surrounded by players; and the case against President Joe Biden’s student loan forgiveness plans on behalf of an entity that wanted nothing to do with the case. The Roberts court’s forbearance is not something to take for granted. So was the show of restraint with the Pennsylvania case a sign that the justices will not become involved in the 2024 election?

Probably not.

Alito signaled that he and his two colleagues might reopen this specific dispute and others like it in the coming weeks if another case were presented. He called the Pennsylvania Supreme Court’s decision “controversial” and the issue at stake “a matter of considerable importance.” As legal journalist Chris Geidner noted, this language is “a sure signal from the trio to the RNC, Donald Trump, and other possible litigants” and “clearly a set up.” Should Trump or his allies want to bring a new suit after the election, at least three justices would be open to taking the case. The question is, would a majority be willing to, as this case asked, deny people the right to vote? One framework for looking at a possible answer is by comparing the 2000 election to the 2020 election.

In 2000, the presidential election came down to a few thousand votes in Florida. It wasn’t clear who the winner would ultimately be if all of Florida’s votes were counted, but by mid-December, George W. Bush held a lead of 537 votes. The Florida Supreme Court had ordered a statewide recount of certain ballots, so the Bush campaign asked the Supreme Court to intervene. So when the justices halted the recount in a 5-4 decision, they handed the election to Bush in Bush v. Gore. In effect, they picked the president in what was a tossup situation.

In 2020, on the other hand, there were many entreaties for the federal courts, including the Supreme Court, to throw out ballots and hand the election to President Donald Trump. The efforts to contest the election were coming days and even weeks after it was clear that, with almost every swing state declaring Joe Biden the winner, this was not an undecided election. It was, barring very significant judicial meddling, an insurmountable lead, and despite his protestations, Trump had lost. In such a situation, the Supreme Court stepping in would have risked the court’s reputation. Why help Trump when it would only have given Biden, who would become president, a very good reason to consider court reform?

If tomorrow’s results look like a Bush v. Gore scenario, particularly if the single swing state of Pennsylvania looks like the new Florida, the court’s right flank may be faced with the opportunity to help in Trump’s election. After all, the court has taken multiple steps to help Trump retake the White House, most notably by scuttling his criminal trial over his involvement in the January 6 insurrection. They have also shown a willingness to help the Republican Party in their recent decision to allow Virginia to remove voters from the rolls in a manner contrary to federal law. Interfering again would be a continuation, not an aberration.

But if tomorrow’s results look more like 2020’s, and within a few days, Harris is the clear winner, a majority of the justices might find it unwise to stick their necks out for Trump. Famously, Trump doesn’t like to be associated with “losers.” The justices may feel the same way.

Donald Trump has promised to prosecute his political opponents should he retake the White House. He’s planned to remove the firewall that has traditionally existed between the White House and the Justice Department, and harness federal prosecutors into political dirty work.

But Trump isn’t waiting for Inauguration Day, or even Election Day, to get something similar going—and his first target is the press: In the last 24 hours, Trump has filed legal complaints against two news organizations with frivolous charges. Whether they succeed might be beside the point, because they are a warning shot for what is coming if he wins.

Media organizations are well aware of the risks of crossing Trump, and some already look to be backing down.

On Thursday, Trump sued CBS News over its October “60 Minutes” interview with Vice President Kamala Harris. In the suit, Trump argues that the interview was edited to make Harris look good, amounting to election interference. “To paper over Kamala’s ‘word salad’ weakness, CBS used its national platform on 60 Minutes to cross the line from the exercise of judgment in reporting to deceitful, deceptive manipulation of news,” the complaint alleges. He is asking for $10 billion in damages.

The suit is legally ludicrous, according to experts. “It’s ridiculous junk and should be mocked,” Harvard professor Rebecca Tushnet told CNN. But the fact that it was filed in Amarillo, Texas, is a sign that Trump means business. The only logical reason to file the suit in this division is to secure a friendly judge, a practice known as judge-shopping. And in Amarillo, the only federal judge happens to be one of the most ideologically-driven conservative judges in the country: Matthew Kacsmaryk. Kacsmaryk has shown a willingness to go beyond the bounds of the law to advance lawsuits he agrees with. Most famously, he eschewed long-held legal doctrine to block the FDA’s approval of the abortion drug Mifepristone. (The Supreme Court overruled him.)

There is also a political reason to file the suit, which follows weeks of Trump complaining in public about CBS’s editing of the interview. Being able to point to a lawsuit alleging media bias furthers his argument to supporters that the press is the enemy and is working for the other side.

It’s one thing for Trump to sue CBS as a citizen. But if he wins, Trump could make sure this type of suit comes from the Justice Department. It’s a warning shot to the media that any coverage Trump deems unfavorable, including an interview with a rival, could land them in court opposite the US Government.

Media organizations are well aware of the risks of crossing Trump, and some already look to be backing down. Exhibit A are the last-minute decisions by the billionaires who own the Washington Post and the Los Angeles Times to block their papers’ editors from making Harris endorsements at the last minute. Amazon CEO Jeff Bezos, who owns the Post, has billions in government contracts that could be nullified in retribution under a Trump presidency.

Trump is already targeting the Post. On Thursday, the campaign submitted a complaint to the Federal Election Commission alleging that, by paying to boost stories critical of Trump, the Washington Post illegally donated to the Harris campaign. Clearly, Bezos’ decision not to endorse Harris hasn’t appeased Trump.

These attacks on both the Post and CBS should sound alarm bells. They also follow Trump’s efforts to punish CNN for its coverage during his first term, and his repeated calls for every major television broadcaster to lose its broadcasting license. Whether Trump could pull off such a feat is unclear—for one thing, local affiliates hold the licenses—but the message Trump is broadcasting is being heard loud and clear: If Trump wins, he will retaliate against the press.

Indeed, he’s already started.

If Donald Trump wins a second term, he will enter the White House at 78 years old, making him the oldest person ever elected president. Anything can happen over four years, and there is, of course, a chance he will not complete his term. The former president, who has already been the subject of two impeachment efforts, has refused to release even basic information about his health.

Given that state of affairs, it seems important to have a sense of how his vice president might govern if elevated to the top job. That person would be Ohio Republican Sen. JD Vance.

“We’re going to have to get pretty wild.”

Vance vaulted to celebrity with the publication of his book, Hillbilly Elegy, in 2016, in which he brought attention to the down-and-out white working class in the midwest. In the memoir, Vance describes how he worked his way into the belly of elite America, namely Yale Law School, where he felt out of place and unschooled in the mores of the upper class.

But after law school and the conclusion of that book’s story, Vance joined the elite as a protege of far-right billionaire Peter Thiel. Ahead of the 2022 elections, Thiel spent a critical $15 million funding Vance’s victorious Senate race, before reportedly lobbying Trump this summer to select him as running mate.

In a short span, Vance’s has transformed from a self-appointed speaker for the masses to a protege of his billionaire patron—and along the way, adopted much of the techno-authoritarian, anti-democracy ideas of Thiel and other Silicon Valley rightwingers. He’s also associated with a crowd of highly online Christian nationalists, the so-called “TheoBros,” who want the United States to be both Christian and white while seeking a return to archaic gender roles, including by ending women’s right to vote. Vance converted to Catholicism under the influence of a thinker named Patrick Deneen, who advocates for an end to liberal democracy.

With such a background, what kind of president would Vance be? According to Steve Levitsky, a Harvard political scientist who studies democratic backsliding, Vance could choose between two paths. As a power-seeking pragmatist, he could decide that his best route to sustained success is through a more traditional Republican politics. Or, he could attempt to push on and bring about the extremist, anti-democratic worldview he has been marinating in for several years.

One of Vance’s most chilling quotes, from a 2021 podcast appearance, promises the latter. Vanity Fair quoted parts of it in a profile the following year, as a summation not only of Vance’s views, but of those of Thiel and the far-right community he has become a part of:

“I think Trump is going to run again in 2024,” [Vance] said. “I think that what Trump should do, if I was giving him one piece of advice: Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people.”

“And when the courts stop you,” he went on, “stand before the country, and say—” he quoted Andrew Jackson, giving a challenge to the entire constitutional order—“the chief justice has made his ruling. Now let him enforce it.”

This is a description, essentially, of a coup.

“We are in a late republican period,” Vance said later, evoking the common New Right view of America as Rome awaiting its Caesar. “If we’re going to push back against it, we’re going to have to get pretty wild, and pretty far out there, and go in directions that a lot of conservatives right now are uncomfortable with.”

If fate gives Vance a chance to put these words to action, his past policies and ideas are the best indication of the kind of president he would be. Here’s an incomplete list of what America could expect.

Abortion

Without Roe v. Wade, Vance would be free to pursue a nationwide abortion ban. And while Vance has recently tried to moderate his stance by favoring the euphemistically named “minimum national standard,” that sounds like Yale Law-speak for a ban.

He has previously stated his opposition to any exceptions for rape and incest, and compared abortion to slavery. Vance would use the tools of government to enforce such bans, as laid out in Project 2025. Vance also supports the ability of local law enforcement to obtain women’s private medical records, which would be key evidence in prosecuting women, doctors, and possibly others who may have aided in obtaining an abortion. 

Vance is also an adherent of pronatalism, a movement associated with Elon Musk and far-right Silicon Valley circles. In addition to banning abortion, Vance would likely implement policies to encourage larger families, possibly through a larger child tax credit, as he has supported in the past.

He’d also like to tie those families together by making it harder for people to get divorced. Family law is traditionally a state-level issue. But if it were up to Vance, divorce, even in a violent relationship, would be a lot harder to obtain.

Despite his emphasis on making babies, Vance would likely there’s evidence he might oppose IVF. In 2017, he wrote the forward to a Heritage Foundation report on how to encourage women to have children earlier and return to “traditional” family structure, according to the Guardian. The report included an essay denigrating in vitro fertilization and argued that women spend their reproductive years on advanced degrees and careers, rather than having kids, thanks to the promise of having children later with IVF. (Vance’s spokesperson said the essay did not necessarily reflect his views).

Transgender rights

Vance would seek to ban gender-affirming care. In the Senate, Vance is a sponsor of legislation to impose a 12-year federal prison sentence for providing gender-affirming care to a minor. His bill also targets transgender adults by cutting funding from any health plan that covers gender-affirming care. And in a jab at the First Amendment, it prohibits institutions of higher learning from teaching about gender-affirming care—a move that signals Vance would be open to using the tools of government to regulate curriculums.

Foreign policy

Upon the selection of Vance, European diplomats reportedly worried what a Trump-Vance presidency would mean for Europe’s security. The answer, they concluded, is not good.

As a senator, Vance has been a vocal critic of sending military aid to Ukraine. If Vance became president, the United States could (if it hadn’t already under Trump) cease its support of Ukraine against Russian aggression, a move that could signal that Russia might get away with invading more neighbors without pushback from Washington.

Vance has instead argued for focusing US military resources in a fight against China. This would include additional tariffs on Chinese goods, likely causing prices in the US to rise. Vance hopes that limiting imports from China would boost US manufacturing as part of a broader withdrawal from economic globalization.

Economy

Aside from tariffs, Vance has supported other government policies aimed at bolstering production in the US. Vance has co-sponsored legislation to raise the minimum wage to $11 per hour—more than the current $7.25 per hour, but much lower than the $17 favored by some Democrats. Perhaps he’d follow through, especially if tariffs cause prices to rise. He also sees immigrants as a cause of depressed wages, citing that as a reason they should be expelled. Vance’s minimum wage bill, for example, includes increased penalties for hiring undocumented workers.

Vance is pro-crypto. According to NPR, he owns over $100,000 worth of Bitcoin and has fought efforts to regulate the industry, even as ordinary people, like those who put their money in FTX, lose money. 

In addition to protectionist trade policy and tariffs, Vance has spoken in favor of breaking up monopolies a point of convergence between the left and the right. But his antipathy can be focused on Big Tech companies, which may have less to do with their size than his perception they are liberal. In a February X post calling for Google to be broken up, he complained that “monopolistic control of information in our society resides with an explicitly progressive technology company.” Perhaps if Google were more reactionary, he wouldn’t mind so much.

Whatever antitrust sentiment he sincerely holds would be paired with a typical GOP deregulatory scheme that allows billionaires, oil executives, and Wall Street to plunder the economy and environment to further line their pockets. 

Labor

Vance has paid lip service to unions, but he opposes the PRO Act, which would bolster union organizing and bargaining. Vance is aligned with individuals who oppose unions, including Elon Musk who is currently waging a court battle against the constitutional underpinnings of the National Labor Relations Board. 

Vance has given a frank and pragmatic reason for opposing union power. “I think it’s dumb to hand over a lot of power to a union leadership that is aggressively anti-Republican,” Vance told Politico. Indeed, authoritarians do not like other centers of power, particularly those that might challenge their authority.

Immigration

At the Republican National Convention, Vance described the United States as “a group of people with a shared history and a common future. It is, in short, a nation.” As my colleague Kiera Butler explains, this line was a wink to Christian nationalists who view immigration as a threat to the country’s white, Christian identity. 

In the Senate, Vance sponsored a bill to ramp up deportations, crack down on asylum claims, and resume construction of a wall along the southern border. He also proposed a resolution backing a radical constitutional theory that would allow governors to round up and deport immigrants—and possibly even carry out their own military operations in Mexico. He has also fundraised on the promise of the mass deportation of every undocumented immigrant.

Clearly, Vance would seek to limit immigration, deport millions, and curb the rights of all immigrants. He’d justify this agenda by scapegoating immigrants with false smears, as he did to the community of legal Haitian immigrants in Springfield, Ohio, by claiming without evidence that they were snatching and eating pets. 

Free speech

In the Senate, Vance supported legislation to crack down on protest encampments on college campuses. It’s probably safe to say he wouldn’t like protests against his own policies either, and would crack down on those as well. Trump wanted to use the military to do that. Vance hasn’t himself said he would go that far, but has defended the ex-president’s recent remarks on the subject.

There is one kind of protest Vance approves of, which is demonstrators who interfere with people’s right to enter an abortion clinic. But with abortion outlawed, that kind of protest probably won’t be happening.

Civil Servants

As Vance’s quote from 2021 shows, he favors a hostile takeover of the federal government to enact his own vision for the country. So if Trump hadn’t already replaced the civil service with loyalists, Vance would try to finish the job.

Pushing through a change creating a new federal employment category known as “Schedule F,” as Project 2025 envisions, would allow the president to purge non-partisan government workers and instead fill agencies with loyalists. Trump actually attempted to enact the change at the end of his first term, but Biden promptly revoked it.

Democracy

Vance, by his own admission, would have helped Donald Trump overturn the 2020 election had he then been his vice president. That is, above all else, why Trump selected him. Vance would put Trump over free and fair elections. And if he’d do that for Trump, you have to ask, would he do it for himself? 

Certainly, he’d support laws that make it harder to cast a ballot, and nominate judges who would help his party win elections through legal challenges. Vance probably wouldn’t feel too bad about it, as his intellectual influences include neo-monarchists who advocate for the end of popular democracy.

When thinking about the possibility of a President Vance, remember what he said on that podcast in 2021: “We are in a late republican period. If we’re going to push back against it, we’re going to have to get pretty wild.”

Donald Trump may be a known quantity. He’s been a public figure for decades, a television star, and president from 2017-2021. But a second Trump term would present something the United States has never experienced before. Not a would-be authoritarian in the White House—that was Trump’s first term—but a would-be authoritarian who could actually accomplish the task of transforming the federal government into a tool of political repression.

Trump is promising to do things in a second term that he didn’t get close to achieving in his first: rounding up, detaining, and deporting millions of immigrants, using the Justice Department to prosecute political enemies, and deploying the military against Americans he’s identified as “the enemy from within.”

“Usually, it’s worse.”

It’s an agenda much bolder and much more authoritarian than what he accomplished in his first term, when low points included a ban on people from certain Muslim countries from entering the US, family separation at the border with children held for weeks in cells, withholding weapons from Ukraine in an attempt to get dirt on his political opponent (the reason for his first impeachment), and a bungled response to the COVID-19 pandemic. The finale was a violent attack on the US Capitol in an attempt to overturn the 2020 election. (Hence the second impeachment.)

But there is another, frightening list of the things that Trump wanted to do, but, thanks to hurdles in his own administration, he wasn’t able to. He wanted to deny disaster relief to California because it’s a blue state. He wanted the military to shoot Black Lives Matter protesters in the legs. He wanted the military to seize voting machines after he lost re-election.

There was also significant pushback to Trump from outside the government. There were massive popular protests, and a torrent of litigation from groups like the ACLU. Shortly after Trump’s inauguration, the Washington Post added a slogan to its homepage and print editions: “Democracy Dies in Darkness,” a phrase Post owner and Amazon CEO Jeff Bezos had borrowed from a speech by Bob Woodward.

Some of that opposition to Trump is alive and well. Trump’s former chief of staff, General John Kelly, went on the record warning that Trump is a fascist. The Cheneys are voting for Harris. But some things seem to have changed in recognition of what Trump might do if re-elected. The Post opted not to endorse a candidate this year, a decision that came from Bezos, who has lucrative Pentagon contracts. The Los Angeles Times, also owned by a billionaire, likewise declined to endorse. It’s a chilling sign if acquiescence is already the response of America’s richest men.

To get a sense of what a second Trump term would be like, and what guardrails would remain to box in his authoritarian ambitions, I spoke to Steve Levitsky, a Harvard professor and author of How Democracies Die with co-author Daniel Ziblatt. We spoke on Friday, when Levitsky and Ziblatt published a New York Times op-ed chastising America’s business and religious elites for sitting on the sidelines during this momentous election. Our conversation has been edited for length and clarity.

We already lived through one Trump term. Why should we be expecting, possibly, a dramatically different result in a second Trump term? The consensus among experts in authoritarianism like yourself is that a second could prove really catastrophic.

Just to begin, several cases immediately come to mind—Nicaragua and Hungary—where the second term around was considerably worse than the first. Autocrats learn from their mistakes. Folks whose primary goal is to concentrate power learn how to do it. In the case of Trump, we have to remember he didn’t expect to win in 2016. He had no plan. He had no experience. He had no team. Very importantly, he relied heavily on mainstream Republican Party officials and technocrats to govern. He had no clue how to manipulate the machinery of government. In fact, he was shocked and appalled to learn that the machinery of government didn’t just operate at his whim, that he was unable to manipulate a range of state institutions for his own political and personal ends.

Reince Priebus, the RNC chair, was his first chief of staff. He used to apparently dissuade Trump from his worst impulses by telling him they would do it “next week.”

Exactly. There were adults in the room who prevented him from doing a lot more damage, who found ways to to distract him, or to dissuade him from his worst instincts. He learned that he if he’s going to wield the machinery of government for his own ends, he needs to purge and pack the government with loyalists, as much as he possibly can. It’s much more likely that he’ll be able to wield, for example, the Justice Department against critics and rivals. He’ll be able to launch investigations and even prosecutions, often for petty infractions against all kinds of people, hundreds and even thousands of people.

I don’t think Trump’s control over the courts will be sufficient for him to actually jail his rivals, but you can do a hell of a lot of damage investigating and trying and attempting to prosecute people. You can dissuade hundreds, even thousands of people to stay out of politics, to avoid the kind of harassment that a federal investigation can involve.

The largest difference, though, is that now Trump thoroughly controls the Republican Party. He did not have that control in 2016 but now there is no other faction outside of MAGA. His cabinet will be a Trump loyalist cabinet, which is not the case in 2016. It’s very unlikely that you will see much pushback from the Senate or the House, and there is a very good chance that if Trump wins the presidency, the Republicans also win the House and the Senate. You’ve got a pretty friendly Supreme Court. He’ll have a better sense of what he wants to do. This is really night/day from 2016.

Some of the people that have come out and called Trump a fascist have been generals who worked for him, Mark Milley and John Kelly. Kelly cited Trump’s threat to use the military against the “enemy within” as a reason he spoke out. Trump has said he wants to send the military into Democratic cities. Is the military an area where you see susceptibility to authoritarianism, or would it be more of a bastion against crossing certain lines?

We don’t know, because we haven’t seen anything like this, perhaps since the Civil War, where you have a professionalized military that’s asked by a civilian leader to to violate the Constitution or to help him abuse power. That puts military leaders in a terrible bind, because, on the one hand, in a professionalized military, you’re duty bound to both the Constitution and the president, and when the President is asking you to choose between the Constitution the president, it’s a very, very difficult bind. It’s really hard to anticipate how the military will respond.

I think the military itself will find itself divided. It’s very hard to say whether Trump will make the effort to pack the military. The military commanders are still going to be adults, certainly relative to the people in the Trump cabinet. I think they’ll be much more difficult to push around than Trump’s cabinet. But at the end of the day, if he insists, and they are trained to obey civilian authorities, so if Trump orders them under the Insurrection Act to go and shoot protesters in the legs like he wanted to during the Black Lives Matter protests, the military is going to have a hard time disobeying it. Until he’s stopped by the courts or by his own people, if the President wants to try to turn the military into a weapon, yeah, he may be able to go part of a ways towards doing that.

I read the New York Times piece you published today on the role of civil society. It doesn’t seem like you’re very impressed with what civil society has done so far. Do you believe it would still be a guardrail in a second Trump presidency?

The US has a pretty vibrant civil society and it played a pretty important role in the first Trump presidency. We created pro-democracy organizations, bankrolled by wealthy business people. There was a lot of societal pushback in 2016 and 2020.

We are concerned that a lot of church leaders and business leaders, politicians and university leaders, too, are just fearful and wanting to accommodate themselves. They’re trying to position themselves so that they don’t have it too bad under a Trump presidency. That kind of uber pragmatism, when democracy is on the line, is very dangerous. It’s not a great sign that somebody like [JPMorgan CEO] Jamie Dimon, who has a lot of influence in financial circles, is unwilling to come out and repudiate Trump as an authoritarian. This guy should be a business leader. The private sector should be standing up. Most CEOs are going to vote for Harris, but they’re unwilling to take a strong public position, and that may have some effect in the election, because voters still do respond to elites. If all the elites who say in private how terrified they are of Trump, if they were all to hold a press conference and say it in public, it would move the electorate enough to hand the election clearly to Harris. So it matters that these guys are behaving in such a fearful, hyper pragmatic way.

And it’s a bad sign for what will happen if Trump wins the presidency. It suggests that, much like we’ve seen in other countries like Hungary and Turkey, you’ll see an awful lot of business people willing to be co-opted and unwilling to bankroll opposition organizations. I think the private sector and our civil society is big, diverse, and wealthy enough that you’re going to see a pretty healthy opposition. But not enough. To see how influential university presidents, Catholic leaders, and business people remain on the sidelines is worrisome.

What is your best case scenario for a second Trump presidency?

The best case scenario is that we muddle through. That Trump lacks the energy or the ambition to fight too many fights, that his performance in office is somewhere between poor and mediocre, [Republicans] lose the midterm elections, and we have a dysfunctional four years. And he can’t get JD Vance or his son or whoever he wants to be the candidate in the 2028 election.

I think about who would run in 2028 since Trump is disqualified from a third term.

There’s a decent chance we’ll see a President Vance in the next four years if Trump is elected.

Mike Pence turned out to be one of those guardrails on January 6. Vance has said he would have approved the fake slates of electors.

Vance has a better grasp of reality than Trump, which, I suppose, is comforting. We know he’s a hyper pragmatist. He will say anything to further his ambitions. I mean, that’s true of all politicians, to a degree, but this guy really takes it to the next level.

There’s one world where this new rightwing Catholic ideology and blood and soil nationalism that he’s grasped on to in recent years, that he really believes that stuff, and that he’s pretty ideologically driven. You combine somebody with actual talent and discipline and skill with an ethno-nationalist ideology, and it’s scarier than Trump, because at least Trump is inept and has no discipline or patience.

Or, he may just want power, and may decide that the safest route, the more pragmatic route, is to sort of head back to more traditional Republican territory. I have no idea which of those two scenarios would happen.

Countries that have gone the authoritarian route, they still have elections, but they aren’t really fair elections, where people can actually express their preference or have it be accepted. Could that happen in the US in four years?

I have no doubt that if Trump has a horse in the 2028 election, that he will try to use the machinery of government to tilt the playing field, and that you may see some real abuse in Republican-controlled states. There could be a certain amount of unfairness. I don’t think there’ll be anywhere near enough unfairness that people will be not be able to express themselves at the ballot box.

The Democratic Party has the advantage of being a unified opposition party, which you don’t see in places like Hungary or Nicaragua or elsewhere. It’s an electorally viable party. It has a shitload of money. And that’s not going to change. Trump is not, I think, going to be able to do what Putin did, or Orban did, or Chavez did, which is squeeze the private sector, all the private sector so much that nobody is willing to finance the opposition. That’s a really critical thing to be able to do. You can really tilt the playing field when you do two things: when you get the media to self censor, either because you put your guys in control of the media, private or public, and you bully the private sector into not financing the opposition or media. When you can do that, then you really have tilted the playing field. I don’t think Trump’s gonna be able to do that. We may well slide into a mildly authoritarian regime. I think Democrats will be able to contest and and quite possibly win.

There are voters who are really disaffected. I’m thinking particularly of young voters who say democracy isn’t working for them. They don’t have faith in the system, and they’re thinking about voting for Trump, or not voting, or voting a third party, because they just want to burn the whole thing down and start over. Is there any plausible way that electing Trump does that? And a better government, like a Phoenix, rises from the ashes?

What do you mean? What Phoenix?

I don’t know. Is there a lesson from history that would show that if Trump wins, then maybe we can get something better out of it?

Usually, it’s worse. With a populist, you’re just pretending to burn the house. You’re basically just punching the establishment in the gut. Just watch them squirm. But most of the time, people elect a populist, and the populist is predictably mediocre or poor in their performance, and the really discontented people who voted for him end up in a slightly worse place. Once in a while, though, the populist will be so bad, it will kind of cure people of their democratic discontent, and they become a little bit more committed to democratic institutions.

But most of the time, it just makes things a little bit worse. That’s the best case scenario.

If the polls are right, the United States is headed for the largest Election Day gender divide in history. Women will cast a ballot for Vice President Kamala Harris by 54 percent to 42 percent, according to the latest New York Times/Sienna poll, while men will vote for former President Donald Trump, 55 percent to 41 percent. The gap is even more extreme among voters under 30, with 69 percent of young women picking Harris, but only 45 percent of young men choosing the vice president.

The march towards any kind of greater equality…has never been straight in this country.

Gender is, in many ways, the defining feature of this election, and the contrast between the candidates could not be more stark. There is Harris, who could be the first woman president, or Trump, whom a jury found liable for sexual assault. More critically for voters to consider, this is the first presidential election after the fall of Roe v. Wade. In choosing between Harris and Trump, voters are choosing between a candidate who wants to again make abortion legal across the country, and a candidate who refuses to rule out signing a nationwide ban. 

The issue is one of the ways this election has become a referendum on women’s place in society, a revisitation of progress made since the women’s movement. One party wants to put a woman in the White House, the other wants to send women back into their own homes to focus on childbearing. In a post-Roe world, this is far more than any symbolic referendum: Access to abortion is about health care, but also about a woman’s ability to decide the course of her life. As Trump’s campaign promises a return to a patriarchal society, his is not a vision of an equal society, where both sexes benefit from equal rights. Instead, it’s a zero-sum contest where one sex prevails.

Helping his cause is that, on the other side of the ledger, men also feel their future is on the line. Again and again, young males report feeling directionless and emasculated by modern society. They report wanting to be able to earn enough money to support a family, like their fathers or grandfathers did. Trump has courted these men by presenting himself as the epitome of masculinity, describing himself as the protector of women while associating himself, as he did at his convention, with wrestler Hulk Hogan ripping his shirt off—a combination of paternalism and hypermasculinity that, if the polls are right, carries significant appeal.

To make sense of these currents, I spoke with Notre Dame political scientist Christina Wolbrecht, whose scholarship focuses on the politics of women’s rights. This conversation has been edited for length and clarity.

Polls are showing a bigger gender gap this year than ever before. Do you have any reason to doubt this? 

The usual cause of the gender gap is not abortion, it’s not women’s issues. It really has more to do with different preferences among men and women on social welfare issues, on support for education, and health care. The truth is—and I’ll put a big asterisk on this, because we live in a post-Dobbs world—that men and women don’t vary dramatically in their preferences when it comes to abortion rights. 

The post-Dobbs asterisk is this: since Roe, the status quo has favored the pro-choice side. And until two years ago, I would have told you that there are single issue pro-life voters whose number one issue was stopping abortion. I would have told you, pre-Dobbs, that pro-choice people are not that way. The world has changed now. No longer do pro-choice people have the status quo. They are instead fighting to get it back. And they’re the ones that are desperate to change policy.

So now that the status quo has changed, we’ll see if that draws people to the polls or influences their vote.

Threat is a mobilizer. This is why, according to the NRA, they’re always coming for your guns, right? Because fear gets people to donate and vote. And now they really are killing women and denying them health care, and that may be more mobilizing.

When I think about the very real possibility of a gender gap bigger than previous cycles, it seems to me that abortion would have to be a big part of that, because there’s so much on the line for women: decisions about if they want kids and when, what they can afford, and what job they have—everything is wrapped up in that.

I think that’s all true, but that doesn’t mean that other things aren’t as or more important. So yes, you want to control your fertility, but you also live in a town where all the manufacturing has left and you don’t have access to jobs and you’ve been told it’s the fault of immigrants. Or you are really worried about foreign trade and how it’s affecting your company. At the end of the day, things like education and wealth and occupation have always driven vote choice. It’s not always clear to me that abortion can overcome those things. Among some people, it can be true that you want to be able to control your fertility and and have access to abortion, and you don’t like what’s happening to women in the states with bans, but you also don’t really like immigrants very much, or you hold sexist beliefs. 2016 was the first time that people’s views on sexism predicted whether they vote Democratic or Republican, and that has remained true since. Both men and women can be sexist. It may be the case that abortion will change everything. But if it does, that’s going to be unprecedented, because it hasn’t in the past.

Staying on that theme of sexism predicting your vote, I want to ask you about men. It does seem like men are moving toward Trump, particularly young men. Trump’s campaign stands for a restoration of traditional gender norms that is appealing to some men. The idea seems to be that men are suffering as gender roles are changing. 

There’s traditional sexism that’s like, ‘It’s better women stay home with the kids, and a man’s place is in business, and women are more naturally caring.’ It’s very gender stereotypical. What you were really talking about is gender resentment: ‘Women get stuff just for being women, women are always accusing men of stuff they didn’t do, I can’t tell jokes at work anymore because there are women around.’ That sense that the advance of women limits me, that’s to say, a man, is really powerful. And we’ve seen an association with [that] and voting for Republicans. It’s similar to racial resentment, which is a little different than traditional racism. It’s more focused on, again, ‘People get all these advantages I don’t get, and it’s unfair.’

After the 2016 election, surveys showed that people who voted for Trump were more likely to say, ‘It’s harder to be white, there’s more racism towards white people.‘

Racial resentment was an important predictor in 2016, as was gender resentment. That continued in 2020 and I absolutely, 100 percent assume it will continue in 2024. In general, men are more likely to hold those sorts of gender resentment views. There are a lot of women who feel like they lose out from women’s equality; it’s probably fair to say more with older women.

Resentment sexism seems to be cropping up more with younger men in terms of feeling like, ‘I have no future, I can’t make any money, I can’t buy a house, there’s no place for me in society right now.‘

There’s been talk for months of this idea that young men are becoming very conservative and young women are becoming very liberal. There are debates amongst the more statistically-minded pollsters about what the data really show. What’s interesting is that a lot of that isn’t so much the movement of men, but it is the movement of women.

Let me circle back to the two types of sexism you described. We’re seeing a lot of messaging around the resentment piece, particularly targeted at young men. There also actually seems to be a lot of what you described as traditional sexism. I think especially of JD Vance and his derision of childless cat ladies, his comments that the role of grandmothers is to take care of their grandkids and that women are more fulfilled by having kids. 

To make the connection to race again—because I do think they belong together—ten years ago, we talked about racial resentment as dog whistles. The dog whistles are gone. People are just coming out and saying outwardly racist things: ‘These people aren’t as smart. They’re rapists and murderers.’

You are absolutely correct that a lot of what has been brought to people’s attention, about JD Vance in particular, is exactly what you said. It’s out and out. ‘It’s better if women are at home and men are working. What’s wrong with Taylor Swift, she’s 33 years old and doesn’t have a child, because that’s women’s purpose in life.’ I don’t think it’s a mistake.

On the flip side, masculinity appears to be a big part of Trump’s draw. He has Hulk Hogan ripping off his shirt at the convention, he talks about how he is going to protect women. That all seems like stuff in the traditional sexism bucket. There’s this clip of Stephen Miller, Trump’s close adviser, giving dating advice. He told men to “wear your Trump support on your sleeve” to “show that you’re a real man” and “not a beta.” The obvious message is if you want to be masculine, then you vote for Trump.

It’s a huge, huge piece of it. The gender resentment we were just talking about is a strong man who provides for his family, is the leader, is the decision maker. We’re seeing that a lot in this election. [There’s a] comparison to Tim Walz. Donald Trump’s the above-it-all, wealthy traditional man. Tim Walz has all these male skills. He’s going to fix your gutter. He coached football. He has a traditional family. But he’s also community-oriented. Nobody thinks Donald Trump ever helped anybody do anything. Whereas part of the Tim Walz brand is this idea that he’s always the guy who lends a hand.

He’s the Democrats’ alternative version of what it means to be a man who is not threatened by women.

I gotta tell you, I’ve been studying women in politics for 30 years. It’s insane. This is not where we were going.

What do you mean?

That I succumbed to one of the greatest myths in American history, which is this idea that the road to progress is straight and continually forward. I was 14 when the first woman was on a presidential ticket, and that was a big deal in my household. And so, of course, then we’re going to have a woman presidential candidate, and we’re going to elect the first woman vice president. And in some ways, that’s right. In the last three presidential elections, women have been at the top of one of the tickets in two of them. That’s remarkable, given our history.

But the reality, the thing that I know in my more experienced and knowledgeable brain, is that the march towards any kind of greater equality and breaking down hierarchies has never been straight in this country. We’ve made leaps and bounds on things, and then taken them back. That struggle over what is the future, and what does the United States look like, and what kind of people are we going to be, and how are we going to live? It has really been very pointed in this election.

There’s the narrative about women’s place being raising kids at home. But with access to abortion being also on the ballot, it’s not just rhetoric anymore. Maybe women will just have to stay home—or more women than want to.

Do people truly understand what is at stake in this election? Is it getting through to women that this really is limiting access—not just to abortion, but to birth control, to control over your children and how they’re raised, and all those types of questions? More broadly, that a Donald Trump presidency almost certainly leads to a dramatic corrosion of the state of American democracy. Rights and freedoms and liberties are also on the ballot. There are probably some psychologists that could explain how it’s hard for our brains to grasp something that significant.

I see that meme all the time showing women in Iran in the ‘40s and ‘50s, where they had all sorts of freedoms and were very cosmopolitan. And then a different kind of government comes in and shuts all of that down. If we’ve learned anything in the last eight years, it’s that the United States is not as special as we thought, that the erosion of rights is very, very real.

Nearly half of states accept mail-in ballots that were mailed by Election Day, but arrive sometime after it. No court has ever questioned this practice, which is squarely within the purview of states’ election authority. But in an attempt to throw out possibly thousands of mail-in ballots, the Republican National Committee launched a challenge to the practice in Mississippi. And in a stunning opinion released late Friday, an ultra conservative panel of three Trump-appointed appellate judges agreed.

With the possibility of the ultimate promotion so close, there’s no room for squishiness.

Georgetown professor Steve Vladeck called the opinion “nuts on its face.” UCLA election law expert Rick Hasen called it “bonkers.” Legal reporter Chris Geidner explained that the opinion is the logical equivalent of Swiss cheese: “It’s a ruling that has to write around all of the laws that allow the receipt of ballots before Election Day, the federal laws that allow the receipt of ballots after Election Day, and all other practices that could contradict with such a strict definition of Election Day.” .

At oral argument, the three judges actually appeared circumspect of the RNC’s arguments, chief among them how to square early voting with the idea of an Election Day that proscribes a single day for casting ballots. Observers predicted that even this far-right panel wouldn’t throw out decades of unquestioned election law. And yet, on Friday evening, all three judges did just that.

And when you think about it, that was always going to be the outcome.

The 5th Circuit judges who heard the case—James Ho, Andrew Oldham, and Kyle Duncan—were all appointed by Trump and have significantly shifted the appeals court not just to the right, but by putting it in service of a Trumpian agenda that rules in favor of Republicans and against the federal government. All three have appeared use their position as part of an ongoing audition for an appointment to the US Supreme Court. And a vital step of the interview is happening right now.

Donald Trump may be only a few months from re-taking office and replacing Justices Samuel Alito and Clarence Thomas, who are reportedly looking to retire under a Republican president. With the possibility of the ultimate promotion so close, there’s no room for squishiness. This is the time for ambitious lower court judges to make their case. As long as one of the three is willing to throw out thousands of ballots to help Trump, then of course the others will join in.

If there is any sign of restraint, it’s that they did not put their decision into effect. Instead, they sent it back to the district court in Mississippi to decide the next steps. So it is likely that this ruling will not directly affect the 2024 election. While the Supreme Court could promptly take up the issue directly on appeal, it’s unlikely that the justices will use the case throw out ballots that lawfully arrive after Election Day, now that mail voting has already begun and people are making decisions based on laws as they currently stand. The Supreme Court, by its own doctrine, is not supposed to change the rules mid-game.

But by keeping the issue alive and casting doubt on the legality of ballots that arrive after Election Day, the 5th Circuit may have provided grist to those who wish to sow doubt about the election outcome after November 5. Whereas the panel’s decision injects some uncertainty into the 2024 election, its most obvious impact, beyond the career prospects of Ho, Oldham, and Duncan, is on future elections. If the Republican Party continues to believe its best long-term interests lie in disqualifying mail-in ballots, then it is likely this issue will rise to the US Supreme Court under the next president. If the court follows this panel’s logic, it will bar thousands of ballots from being counted in the future.

Here’s one way Trump and his allies could disrupt and even overturn the 2024 election: It starts with stoking rumors that noncitizens voted. The Trump campaign and its allies go to court to stop certification or throw out ballots in certain precincts and counties, backed by the observations of GOP-backing poll-watchers who claim they saw non-citizens vote. Judges are now contemplating whether to count certain votes—decisions that could decide the outcome of the election.

The lie comes from the same people who tried and failed to overturn the 2020 election.

So who’s behind the push to make baseless claims of non-citizen voter fraud a bogeyman? According to a new report, the money funding the groups pushing the lie comes from the same stew of rightwing donors backing Trump, his authoritarian agenda, and the judges who enable him. The non-citizen voting myth, in other words, is coming from the same activists who may seek to weaponize the lie for political gain this November. And there’s evidence the plot is already succeeding: Polling suggests about half of Americans, including most Republicans, are concerned about non-citizens voting, despite no credible evidence to substantiate it. 

The report, from the pro-democracy non-profit Issue One, zeroes in on the Only Citizens Vote Coalition, a new group of more than 80 organizations propagating the lie that non-citizens are compromising American elections. Though IRS filing deadlines make it hard to track recent donations, Issue One catalogued more than $590 million that flowed to these groups since 2020. While there’s no way to know how much of this money has gone to pushing the non-citizen voting myth, its sources demonstrate the groups pushing the false claim are swimming in the same pool of money that has been used to fund other pieces of the far right’s agenda, from installing rightwing judges to drafting Project 2025, the plan to transform the federal government into an instrument of authoritarian rule and oligarchic plunder under a second Donald Trump term.

The lie of non-citizen voting is being deployed by the same people who tried and failed to overturn the results of the 2020 election—perhaps most notably, election lawyer and election denier Cleta Mitchell, who launched the Only Citizens Vote Coalition and is tightly bound up in the GOP ecosystem. In January 2021, she was on the notorious phone call in which Trump tried to blackmail Georgia Secretary of State Raffensberger into “finding 11,780 votes.” The grand jury investigating the effort to overturn Georgia’s election results recommended indicting Mitchell, but she was never charged. In 2022, her Election Integrity Network began recruiting poll watchers to try to sow chaos and doubt over the midterm elections.

Most of the hundreds of millions flowing to the coalition’s member groups comes from anonymous donor advised funds, which allow rich individuals to give anonymous, tax-deductible gifts. The largest donor to the groups since 2020, at $328 million, is a single anonymous donor advised fund. The second biggest, at $80 million, is another donor advised fund called Donors’ Trust, the so-called “dark-money ATM” of the conservative movement. The third largest donor was the Bradley Impact Fund, whose own funding, a Mother Jones investigation recently revealed, also largely comes from anonymous donor-advised funds. There’s a twisted irony to the fact that the same groups bellowing about the threat of mysterious illegal voters are almost entirely funded by anonymous donors themselves. If it’s such a noble cause, why not put your name on it?

“I don’t think I quite realized going into this what a prominent role donor-advised funds were playing in so much issue advocacy that could serve as pretext to undermine the legitimate results of the November election,” says Michael Beckel, research direct at Issue One and an author of the report. 

The donors’ anonymity helps obscure conflicts created by their activism. For example, the report highlights that several groups involved in funding the Only Citizens Vote Coalition have also helped to appoint conservative judges and Supreme Court justices—the same people they hope will issue decisions tipping the election to Trump if he does not win outright. Take the Concord Fund, which has sent $24 million to coalition members since 2020. It’s run by Carrie Severino, a former clerk to Justice Clarence Thomas and a close ally to Leonard Leo, the longtime architect of the conservative judicial movement who controls more than a billion dollars in dark money. Severino’s group spent tens of millions to secure the confirmations of Justices Neil Gorsuch and Brett Kavanaugh, as well as reshape state and federal courts.

Another example is the 85 Fund, which figures so deeply into Leo’s orbit that it is reportedly part of the DC attorney general’s investigation into whether Leo is illegally using his dark money web to enrich himself. The 85 Fund, of which Severino is a director, has donated $2.5 million to three coalition members since 2020.

The fund also runs the Honest Elections Project, an Orwellian-named group involved in the coalition that has advocated for radical changes to election law before the US Supreme Court. That means the 85 Fund isn’t just a donor to members of the Only Citizens Vote Coalition—it is also, through the Honest Elections Project, the largest recipient by far of the money flowing to these groups: $413 million since 2020. “This is an organization that is led by allies of Leonard Leo, who has played a major role in helping shape the Supreme Court’s current majority,” says Beckel. That makes the 85 Fund an example of playing both sides: fear-mongering over noncitizen voting while also part of the effort to install far-right judges. If the justices get to rule on this issue, the conservative majority will be weighing a pet project put forward by their own friends and financial backers.

The Only Citizens Vote Coalition’s members have significant overlap with Project 2025, with roughly a quarter of the coalition involved in advising or drafting the 922-page plan, according to the report. Those include the 85 Fund and Stephen Miller’s America First Legal Foundation. It’s not surprising, but it is another indication of the fact that the groups pushing the lie about illegal voting have a significant stake in the outcome of the election, with his return to power being an essential step in their plan to remake the federal government and the presidency. 

“I’ve known for years that there are a number of opaque ways that wealthy Americans are trying to influence elections and policy,” Beckel says. Now, those resources are being used to “to lend credibility to a myth that could ultimately serve as the pretext for undermining the legitimate results of the November election.” 

Elections are supposed to be decided at the ballot box. But this year, Donald Trump’s campaign appears to be trying to win on a different field of battle. With dozens of lawsuits already filed across the country, the Republicans are using state and federal courts as a key pillar of their strategy to retake the White House. 

The lawsuits have been flooding in for months from the Republican National Committee—now part of the family firm under the co-chairmanship of Trump’s daughter-in-law—and allied groups. The list includes lawsuits to purge voting rolls, disqualify significant numbers of absentee and mail ballots, and to make it easier for local officials to refuse to certify elections.

Lawsuits to overturn the election are an official part of Trump’s 2024 playbook.

On the other side, a coalition of nonpartisan national voting rights groups—including the Campaign Legal Center, Common Cause, the NAACP Legal Defense Fund, the American Civil Liberties Union, the Brennan Center for Civil Rights, the Lawyers’ Committee for Civil Rights, the Fair Elections Center, and the Southern Poverty Law Center—have been coordinating and preparing for two years to protect people’s right to vote and to have their vote counted. 

For decades, the amount of litigation around elections has been increasing. After the Supreme Court gutted the Voting Rights Act in 2013, it ushered in a new wave of suits centered around access to the ballot—including voter roll purges and changes to election procedures. But in 2020, Trump’s legal challenges changed from efforts to tinker at the margins to efforts to overturn the election. The GOP never repudiated Trump for that effort—and the tactic has since officially become part of his 2024 campaign playbook.

“In 2020, the attempt to undermine election results by the Trump campaign [was] more of an afterthought,” says Sylvia Albert, who runs voting and election projects at Common Cause, a pro-democracy nonprofit. “Now it looks like a cohesive party strategy nationwide, and it’s not an afterthought. The lesson we’ve taken is to prepare for it.”

One prong of that strategy has been to ramp up pressure on states and counties to purge their voter rolls, seeking to limit who can vote by removing people more likely to support Democrats. In 2018, the Supreme Court made such purges easier. According to a tally from Bloomberg, GOP attempts to strike voters make up nearly a third of 165 lawsuits already filed to influence the 2024 election.

This week in Alabama, a federal judge halted a purge that targeted naturalized citizens in a case brought by the Campaign Legal Center, the Southern Poverty Law Center, and the Fair Elections Center, and joined by the Department of Justice. Last week, Common Cause Georgia and local residents, represented by the ACLU and SPLC, successfully stopped a challenge to 232 registered voters in Oconee County, Georgia. Earlier this month, the Campaign Legal Center sent guidance to election officials in 11 states on how to properly handle mass voter challenges within the bounds of the law. As Mother Jones’ Abby Vesoulis has documented, these Republican-backed purge cases are meritless—and most have been filed too late to affect the election. But they have another goal: sowing distrust in the results by spreading the lie that noncitizens are on the voter rolls and fraudulently casting ballots. 

GOP lawyers want judges to “go out on a limb and… create a result that they want.”

Despite new GOP-backed programs to encourage Trump voters to vote by mail, Republican lawyers are behaving as if they expect postal voters to tilt Democratic, as they have in recent elections, and have launched lawsuits around the country that could result in tens of thousands of their votes being tossed. In Pennsylvania, courts are deciding whether to cancel mail ballots from eligible voters with small errors, like missing a hand-written date. Other lawsuits in the state will decide whether counties must alert people if their mail-in votes have been disqualified, and whether those voters can cast provisional ballots.

Some of this litigation, Albert says, is aimed at finding a judge “who will go out on a limb and go really outside the legal world to create a result that they want.” Case in point, an RNC lawsuit challenging Mississippi’s practice of accepting ballots that arrive after polls close if they were postmarked by Election Day, as nearly half of states do. Mississippi is not a state Trump has any risk of losing, but it is under the jurisdiction of the Fifth Circuit, which, as the most conservative appeals court in the country, offers him the best chance of a win teeing up the issue for the Supreme Court. And indeed, a panel of Trump-appointed activist judges on the appellate court is currently weighing that question. It’s worth a try.

While Trump’s 2020 challenges are a blueprint for the GOP this year, voting-rights lawyers expect key differences. Four years ago, Trump’s attempt to discredit the results included an allegedly criminal scheme to send fake slates of electors for Congress to certify, with the help of then-Vice President Mike Pence, culminating in the attack on the Capitol on January 6. That exact scenario is unlikely a second time, not only because Kamala Harris is the vice president, but because the Electoral Count Reform Act (ECRA), passed in 2022, eliminated the perceived loopholes and confirmed the usual practice of counting electoral votes in Congress as a ceremonial activity. 

But that doesn’t mean certification fights are dead. On the contrary, certification fights will come earlier in the process, at the county and state level. “We’re going to see a lot more certification fights,” predicts Albert, not just due to officials refusing to certify but also from candidates objecting to certification, even when they have clearly lost. “The reality of certification is going to be slow and litigious.”

As at the national level, county-level certification was regarded as a ceremonial act until 2020, a typical part of the clerical process of officially counting the ballots in each state. But now that election procedure has been weaponized, Trump allies are ready to delay or block certification to sow distrust and try to disenfranchise voters and change results. Refusing to certify whole counties, particularly in urban, Democratic areas, represents one way pro-Trump forces could try to throw the election. Georgia’s State Election Board, dominated by Trump allies, has encouraged county officials to question results. This week, a state judge ruled that certification at the county and state level is mandatory under Georgia law. However, throughout the country, it’s likely that court action will still be needed to force local officials to comply with laws and precedent requiring them to certify results.

Lawsuits over local certification fights could run up against the ECRA’s December 11 national deadline for states to certify their results. What will happen if a state is forced to certify before a county has complied? Or while litigation over batches of ballots is ongoing? Under the ECRA, lawsuits to settle such questions would be filed in federal court before an emergency three-judge panel. “We’ve spent a lot of time studying the language of the ECRA and the circumstances under which litigation could arise, and we are ready to represent the voice of voters in those proceedings,” says Campaign Legal Center attorney Jonathan Diaz.

“They’re premised on conspiracy theories or total misrepresentations.”

But Albert notes that there are still a lot of unknowns about the ECRA, simply because this is the first election to take place under the new law. What role the special courts will play if a state misses the certification deadline is “just a black hole,” she warns. Without any precedent, “it’s completely unknown.”

Ultimately, election law experts are generally confident that all states and counties will certify their results. State officials, as well as courts, have the power to require local officials to complete certification. Democracy groups and the Harris campaign are ready to jump into the fray with their own lawsuits. The Campaign Legal Center has already sent letters to election officials in seven states outlining their legal obligations to certify, and the consequences of refusing to do so.

Trump and the election denial movement he has marshaled are “sowing the seeds for a few different strategies,” says Jessica Marsden, a voting rights expert with Protect Democracy. One that “keeps me up at night,” she explains, is Trump allies “gumming up the works of the certification process by disrupting vote counting and getting local officials to obstruct the process of finalizing election results,” leaving “election results in the legal limbo for several weeks.”

If they can do so “up until the state deadlines for certifying electors,” Marsden explains, they hope it “that will somehow create opportunities for them to influence the process in Congress or otherwise.”

Most of the dozens of lawsuits already launched by GOP lawyers “are failing,” says Diaz, “because they’re premised on conspiracy theories or total misrepresentations of the facts or misunderstandings of the law.”

“But I think that is partially the point,” explains Diaz, who leads the Campaign Legal Center’s coordination efforts with other voting groups. “They file these lawsuits now, they get a lot of attention about whatever misinformation they’re spreading about the election system, and when their cases get dismissed, they point at the courts, they point at the state election officials and say, ‘Look, we told them about these problems. They didn’t fix it. The election is rigged. You can’t trust it.’”

This strategy builds on Trump’s last-ditch effort in 2020 to throw out thousands of ballots and change the election results through 62 lawsuits and a barrage of misinformation. Four years ago, for example, his campaign asked Wisconsin courts to throw out more than 200,000 votes from the Milwaukee and Madison areas, which would have given the state’s electoral votes to Trump. 

This year, Albert says, the Trump camp is setting the stage for his supporters to reject a loss and for similar challenges by spreading the false claim that thousands of noncitizens are planning to vote. This isn’t a new scheme. Trump claimed to have won the popular vote in 2016—even though he fell short by nearly three million votes—by baselessly asserting the tally included millions of votes cast by ineligible immigrant voters. But what is new is spreading this lie in court before the election. “All of the allegations against immigrants—demonizing immigrants, alleging that immigrants who are not allowed to vote are voting, basically trying to make it so that all immigrants are scared of voting,” explains Albert, “That’s preparation for refusing to accept the results if their candidate loses.”

Outside of elections, the GOP increasingly turns to the courts—and notably the Supreme Court—to enact an agenda it cannot get through Congress. From letting unlimited money flood into elections to weakening unions, from fortifying corporations against consumer lawsuits to ending the right to abortion, from overturning environmental regulations to thwarting gun regulations, there is a long list of unpopular policy demands that conservatives have enacted through the judiciary. It’s an avenue for minority rule when the democratically-elected branches are constantly being disempowered by the courts. Today, pushing elections—the ultimate expression of democracy—into the courts is another manifestation of the strategy. 

Whether one candidate clearly wins, or a long and messy process unfolds to declare a victor, this November presents a new reality—one where advocates must organize to protect an American presidential election. “Everyone should be worried about a coordinated effort to try and undermine American democracy,” says Diaz. “The fact that these are things that we need to prepare for and respond to is not a great sign for the health of the republic.”

But, he added, “we are prepared, and we are ready to respond.”

If you have a problem with X, you could be forced to take it up with Elon Musk’s favorite judge. Starting November 15, the platform’s terms of service will require all litigation to be filed in the Northern District of Texas. It just so happens that this is where Federal Judge Reed O’Connor, who has a financial stake in Musk’s car company, Tesla, hears cases.

Wow: Twitter's new ToS says all disputes will be heard in U.S. District Court for the Northern District of Texas located in Tarrant County (Tesla investor Reed O'Connor's court)

Truly remarkable, considering Twitter's new HQ is NOT in this district, but in western Texas. pic.twitter.com/IoJgrVgytq

— Bobby Allyn (@BobbyAllyn) October 17, 2024

The Northern District of Texas, filled with GOP-appointed judges with a history of precedent-busting far-right opinions, is a magnet for rightwing litigants. Conservative groups from around the country flock to Texas courthouses to challenge Biden administration rules. Some have relocated in order to bring suits there, and brand new legal groups spring into existence there.

Even before attention fell on X’s new terms, Musk had established himself as one of these forum-shoppers. Musk is currently suing the liberal media watchdog group Media Matters in O’Connor’s Fort Worth courtroom. After taking the case and making several rulings favorable to Musk, financial disclosures showed that O’Connor has a stake in Tesla, part of Musk’s business empire. O’Connor has refused to recuse himself, arguing that the case about X does not bear on the stock price of Tesla. However, it is not clear if that is true, since Musk’s personal reputation affects the value of all his companies.

O’Connor is a particularly far-right judge, who has shown a willingness to issue far reaching-rulings. To take a few examples, he has ruled that the Affordable Care Act is unconstitutional (and attempted to invalidate some of its key protections), he found the Indian Child Welfare Act unconstitutional, he blocked protections for LGBT students, greenlit anti-LGBT discrimination by religious employers, and invalidated a Biden administration rule banning so-called ghost guns, which is now before the US Supreme Court.

On X, Georgetown Law professor Stephen Vladeck noted that O’Connor might not catch all such cases filed against X: “I *don’t* read these terms to mean that every case will end up before Judge O’Connor, specifically. The only place in the Northern District where you’re guaranteed to draw O’Connor is Wichita Falls. Elsewhere in the district, you could draw other judges.”

But Musk is probably okay with that. Musk, a pro-Trump donor who has used X to push Republican talking points, is probably popular among other GOP-appointed Northern District of Texas federal judges such as Mark Pittman, who struck down Biden’s original student loan forgiveness plan, or Matthew Kacsmaryk, who tried to take the abortion drug mifepristone off the market.

X did not respond to a request for comment.

Imagine Obamacare is dead and millions of Americans have lost health coverage. Abortion is illegal nationwide, pills to end pregnancies are off the market, and doctors wait until the mother’s death is imminent before attempting lifesaving care. Domestic abusers freely carry guns and government attempts to stop untraceable homemade semiautomatic rifles have been quashed, rendering gun licenses and background checks useless. Environmental regulations founder as climate change worsens. With the sidelining of the Securities and Exchange Commission (SEC) and the Consumer Financial Protection Bureau, Wall Street has returned to its greediest days, making bets that threaten economic stability and preying on consumers with predatory loans and hidden fees. Officials are barred from even asking social media platforms to stem disinformation or calls to violence. Police, unrestrained by federal immigration law, round up, detain, and deport suspected immigrants. Washington can no longer fulfill treaty obligations as states erect barriers along US borders, causing international chaos. And organizing a protest against any of the above may result in you being sued successfully, making free speech an expensive proposition.

These are not mere hypotheticals. The 5th Circuit Court of Appeals—transformed by appointees of former President Donald Trump—has issued decisions greenlighting every one of these eventualities. While some were put on ice by the Supreme Court, others remain in effect in Texas, Louisiana, and Mississippi, the three states the circuit covers. In those states, women have no right to end pregnancies that threaten their health, the enforcement powers of dozens of federal agencies are in doubt, and protest organizers are vulnerable to legal retribution. Other 5th Circuit decisions, from a ruling hamstringing the SEC and similar agencies to one legalizing bump stocks—the device that enabled a lone shooter in Las Vegas to kill 60 people and injure more than 500 in just 10 minutes—are now the law of the land. This is neither the outer bounds of what this radical court will do, nor the end of its impact on all Americans. It is the beginning.

The US Supreme Court oversees 13 judicial circuits, each with an appeals court that hears federal cases arising within its jurisdiction. Every term, the high court agrees to review only a small number of appeals from the circuits, which leaves those appeals courts with final say on most matters. The 5th Circuit has been a right-leaning enclave for decades, filled with judges from the Republican strongholds it oversees. But after Trump placed six new judges on the 17-member court, the relatively staid conservatism of Reagan and Bush jurists gave way to the slash-and-burn tactics of the MAGA movement. On their watch, the court’s decisions, substantive and procedural, have defied judicial precedents and norms while conforming to a familiar far-right agenda of neutering Democratic policies, gutting abortion rights, and undermining the authority of federal agencies.

“There is a new breed of Republican-­appointed judge,” says Stephen Vladeck, a Georgetown Law professor who has followed the 5th Circuit closely. “Much like the divide between Trump Republicans and Bush Republicans politically, there’s a divide between Trump Republicans and Bush Republicans judicially. And what the 5th Circuit has, more so than any other court in the country, is a critical mass of Trump judges.”

Their goal is to move the law far to the right. In case after case, the 5th Circuit has issued rulings that even this Supreme Court regularly strikes down. “It should be shocking that a very, very conservative appeals court is still losing so often with the most conservative Supreme Court in our lifetimes,” Vladeck says.

But even rulings that are overturned move the Overton Window, dignifying once unimaginable outcomes as acceptable and expanding the public’s notion of what’s possible. “These judges know what they’re doing,” says David Lat, author of the Original Jurisdiction newsletter and a longtime chronicler of the courts. “When they are stepping out on a limb, they know that some of their more extreme positions are not going to stick even with a very conservative Supreme Court. But it’s all part of a larger conservative legal movement.”

“They’re winning the war,” he adds.

“What the 5th Circuit has, more so than any other court in the country, is a critical mass of Trump judges.”

Some 5th Circuit judges have loftier ambitions: At least two of Trump’s appointees are widely seen as auditioning for a spot on the Supreme Court should the former president reenter the White House. In this scenario, being slapped down by SCOTUS is less an embarrassing rebuke than an acknowledgment of a judge willing to take things further. “You could see in the 5th Circuit signs of what a Trump Supreme Court would really look like,” Vladeck says. “That’s terrifying.”

In the final days of the Supreme Court’s latest term, which ended July 1, the Republican-­appointed justices issued two momentous opinions that expose even long-established federal regulations to legal challenges. The first ruling, in Loper Bright Enterprises v. Raimondo, overturned Chevron deference—a doctrine that had instructed lower courts to defer to federal agencies’ expert interpretations of contested statutes—in effect snatching back that power for itself.

Three days later, the court supercharged its attack on federal authority in a case known as Corner Post by eviscerating the six-year statute of limitations for challenging agency regulations. Now, virtually any litigant with a bone to pick can sue to overturn a regulation, even if it has been on the books for decades. “No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season,” Justice Ketanji Brown Jackson warned in a scathing dissent.

These two decisions have already teed up a “massive wave of antiregulatory lawsuits,” says Georgetown Law professor Brian Galle, and most “will be filed in the 5th Circuit.”

This wouldn’t be a new phenomenon. The circuit is already a mecca for aggressive judge-shopping, the practice of filing in a jurisdiction where judges are more likely to rule in your favor. Federal district courts select which judge hears a given case randomly, but in certain parts of Texas, litigants are virtually guaranteed to draw hardliners who will rule against Democratic policies. This means anyone bringing a right-wing lawsuit with radical, nationwide ramifications can be assured not only of a friendly trial judge, but also that the inevitable appeal will be heard by sympathetic ears.

“If you have a challenge to an agency action, you really want to look at filing in this circuit, because they’re interested in the issues and there’s an ever-increasing amount of good precedent for you,” says Dallas appellate attorney David Coale, whose legal blog, 600 Camp, focuses on the 5th Circuit.

Indeed, Republicans who dislike a rule or program that President Joe Biden has enacted regularly turn to Texas. “The Biden administration can basically not even take a breath without being sued somewhere in the 5th Circuit,” Vladeck observes. Texas judge-shopping helped Biden’s critics halt a key part of his student loan forgiveness plan. It’s why challengers to Obamacare’s free services, including contraception and HIV drugs, found plaintiffs who could sue in Fort Worth’s far-right district court, and why a policy group founded by former Trump officials relocated there from Virginia. It’s why, in Amarillo, a DC-based libertarian think tank sued to block appliance efficiency rules and a Wisconsin group took on a gun regulation. It’s also why Elon Musk fought tooth and nail to prevent his Texas lawsuit claiming the National Labor Relations Board is the “definition of tyranny” from being transferred to California.

Among the most potentially consequential examples of 5th Circuit judge-shopping is the effort by anti-abortion activists to reverse FDA approval of mifepristone, a drug used in medication abortions, which account for nearly two-thirds of terminated pregnancies in the United States. A Christian legal group incorporated a plaintiff organization in Amarillo, where Judge Matthew Kacsmaryk—who worked for a Christian law firm before Trump put him on the bench in 2019—is the sole federal judge. After Kacsmaryk issued a stunning opinion that banned mifepristone nationwide, the 5th Circuit Court of Appeals, rather than bat his ruling down, upheld it in parts. The drug survived only because the statute of limitations for challenging mifepristone’s approval had expired. The Supreme Court reversed the appeals court ruling in June, holding that the plaintiffs had no right to sue, but the case is likely to return to the 5th Circuit soon. Three states have stepped in as new plaintiffs, and thanks to the Corner Post decision, that statute of limitations no longer applies. For legal groups looking to eliminate abortion in the United States, the clearest path runs through the 5th Circuit.

Lisa Graves, who runs True North Research, a watchdog investigating right-wing legal funding, warns that the circuit’s judges “are enshackling the ability of the president to adopt policies that are widely supported and widely needed. And they are doing so with an almost unprecedented arrogance and aggressiveness.”

The 5th Circuit can accomplish its agenda only by upending settled law, and its precedent-breaking rulings gobble up an outsize share of the Supreme Court’s annual docket. It might seem reassuring that SCOTUS overturned 8 of the 11 5th Circuit rulings it reviewed during the most recent term—more rejections than any other circuit. (Fifth Circuit cases also accounted for nearly half of the Supreme Court’s grants of emergency relief, issued when a party asks the court to quickly halt a lower-court decision.) But this pattern of fringe rulings and rebukes serves a broader purpose for the conservative judiciary. It allows the appellate judges to shape national debate on hot-button topics and lets the Supreme Court, by knocking down the 5th’s wackiest rulings, appear more moderate as it trashes precedent and brazenly rewrites the rules of American democracy.

“The issue isn’t so much that the 5th Circuit reaches ultraconservative conclusions, but that it breaks all the rules to get there.”

Within the crop of Trump judges transforming the 5th Circuit, two—James Ho and Andrew Oldham—stand out, not only for their willingness to implement a far-right agenda, but for their perceived ambition to join the Supreme Court.

Temperamentally, they are opposed. Ho is outgoing and adept at making headlines. His opinions read like partisan op-eds. Oldham is quieter, his writing more like a history term paper. But their goals appear broadly similar: a radical remaking of US law that would end abortion rights, restrict the role of the federal government, and elevate the power of individual states. “Ho might be the poster child, but Oldham is the laboring oar, where it’s really his opinions that are doing the most substantive work to try to move things sharply rightward,” Vladeck says. The two men, he adds, are “very different judges working toward the same goals very differently.”

The two judges, who both declined requests to comment, have another reason to hope for a Supreme Court promotion: Ho clerked for Justice Clarence Thomas, Oldham for Justice Samuel Alito, and both have been mentioned as likely replacements for their septuagenarian mentors, who are expected to retire if Trump wins. Both were forged in the fires of Texas’ hard-right partisan combat, a story that began in 1999, when then–state Attorney General John Cornyn created the solicitor general’s office. The federal government has its own solicitor general, a top-tier litigator who represents US interests before the Supreme Court, and Cornyn reasoned that Texas, too, should have such an expert appeals lawyer on staff. Within a few years, the new office was serving an equally important function: grooming the next generation of right-wing judges and politicians.

In 2002, Cornyn was elected to the US Senate and replaced by Greg Abbott, a right-wing brawler who described his job as “I go into the office, I sue the federal government, and I go home.” Abbott, in turn, brought on a hungry young lawyer named Ted Cruz as his solicitor general and instructed him to insert Texas into every high-profile conservative legal fight in the country. Cruz complied with gusto.

Abbott subsequently hired Ho, who’d worked under Cornyn in the Senate and had helped draft a memo to justify the use of torture after the 2001 terrorist attacks, despite Geneva Conventions prohibitions. Ho would later join a private firm where he took on pro bono cases, including appellate work for the First Liberty Institute, the Christian law firm that employed Kacsmaryk before he became a district court judge. Trump nominated Ho for the 5th Circuit in 2017.

Abbott hired Oldham in 2012 to work in the solicitor general’s office, where he helped challenge the Voting Rights Act and then-President Barack Obama’s immigration and environmental policies. Trump chose Oldham for a 5th Circuit spot in 2018. Stuart Kyle Duncan, another Trump appointee to the 5th Circuit, also worked for the solicitor general under Cornyn. In all, Trump appointed six lawyers from that office to federal judgeships.

When Ho joined the 5th Circuit, he asked Justice Thomas to administer his oath of office. A photograph of the swearing-in shows the pair standing before an enormous stone fireplace in the Dallas library of Harlan Crow, the billionaire Republican donor who has come under scrutiny for lavishing expensive gifts on Thomas that the justice failed to disclose.

Three months later, in his first 5th Circuit opinion (a dissent), Ho defended the right of individuals, including billionaires like Crow, to spend as much money on campaigns as they like. The case involved a voter-enacted contribution limit for Austin City Council races, and Ho aligned himself with wealthy donors against the specter of regulation, arguing that as “government grows larger,” fighting back with unlimited political spending “becomes a human necessity.” Ho’s dissent—which also claimed that the modern federal government would be “unrecognizable” to the founders and that the Supreme Court ruling upholding the Affordable Care Act was wrongly decided—made amply clear what kind of Supreme Court justice he would be.

Ho has sent many such signals. In 2022, he asserted in a concurring opinion that the Supreme Court should revive its decision in the 1905 case of Lochner v. New York, which the court had since overturned. While he framed his argument as pro-labor, the Lochner ruling had struck down a law that protected bakers from being forced to work more than 60 hours a week, ushering in decades of broader worker exploitation. Ho also has made clear that he’s vociferously against abortion, which he has called a “moral tragedy,” and has held that the Constitution guarantees Catholic clergy the right to bury fetal remains against the wishes of the would-be parents.

In 2023, when the 5th Circuit Court of Appeals narrowed Kacsmaryk’s mifepristone ruling, allowing the drug to remain on shelves, Ho wrote he would have fully blocked access. Perhaps most alarming was his proposed theory for why a handful of anti-abortion doctors could bring the suit in the first place. It is a foundational principle of law that a plaintiff cannot merely be a concerned bystander. They must have skin in the game, or standing: an actual or likely injury that a court could remedy. Both Kacsmaryk and the 5th Circuit had accepted the doctors’ dubious claim that they might one day encounter a patient suffering adverse effects from mifepristone and be obliged to help that person in violation of their religious beliefs—despite federal conscience laws that ensure they wouldn’t have to.

In June, the Supreme Court rejected that argument, ruling 9–0 that the mifepristone plaintiffs lacked standing, with Justice Brett Kavanaugh patiently explaining, as though lecturing a first-year law student, that the doctors were not suitable plaintiffs.

Ho had not only supported the rejected ruling, but in a concurrence had gone further to construct a standing doctrine for physicians in abortion cases. “Doctors delight in working with their unborn patients,” he wrote, “and experience an aesthetic injury when they are aborted”—a dystopian perversion of the doctor-patient relationship. Graves worked with Ho about 20 years ago on the Senate Judiciary Committee, and remembers him as “ambitious” and “transactional.” But the idea that a woman must remain pregnant for her physician’s viewing pleasure “shows the veneer is off,” she says. “He’s untrammeled by common sense, he’s untrammeled by restraint. He just thinks that he in that role as a federal judge with a lifetime job can do whatever he wants.”

This past July, Ho went where none of his colleagues had dared. In a concurrence in which he approved of the floating barrier that Abbott, now Texas’ governor, had placed in the Rio Grande to thwart migrant crossings, Ho codified the MAGA rhetoric equating immigration with a hostile invasion. Seven judges warned in a dissent that Ho’s theory “would enable Governor Abbott to engage in acts of war in perpetuity.”

At least two of Trump’s 5th Circuit appointees are widely seen as auditioning for the Supreme Court.

Some of Ho’s boldest politicking happens outside the court. At Georgetown Law in 2022, he defended Ilya Shapiro, a professor the school had put on leave for tweeting, in the runup to Justice Jackson’s Supreme Court nomination, that Biden would select a “lesser black woman.” (“If Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me, too,” Ho proclaimed.) Seven months later, he announced he would no longer hire clerks from Yale Law School after students there disrupted conservative speakers. In 2023, Ho expanded his no-hire list after Stanford law students clashed with Duncan, his 5th Circuit colleague, during a campus lecture. Earlier this year, having popularized a broader clerkship boycott phenomenon, he joined 12 other Trump-appointed judges in announcing they would no longer hire clerks from Columbia Law School in light of pro-Palestinian campus protests.

As for judge-shopping, Ho defends the practice: “This isn’t about forum-shopping. It’s about forum-shaming,” he argued in an April speech to a local bar association in Texas. “It’s about shaming judges.”

Ho’s behavior on and off the bench has raised his profile and made his politics crystal clear. “He’s citing things like Fox News or other kinds of conservative publications that you would not normally cite,” says one attorney, who, because they argue cases before the 5th Circuit, asked not to be named. “No one else writes in that way.”

Ho already was on Trump’s 2020 Supreme Court shortlist. Then, last year, the extremist group American Family Association Action, which seeks to infuse the judiciary with biblical views, placed him on a list of six Supreme Court picks for a second Trump term.

Oldham, the other potential Supreme Court contender, has likewise made his mark with opinions that push the law into uncharted waters. But it may be his pre-judicial government service that’s most revealing. When Abbott invited Oldham to Texas to join the solicitor general’s office, Oldham considered it to be “God opening a door.” Oldham and Abbott would go beyond arguing that specific actions of the Obama administration were illegal to assert that the existence of the very agencies implementing the policies was unconstitutional. When Abbott became governor in 2015, Oldham joined him as a top legal adviser, and, according to the Texas Tribune, played a significant role in crafting Abbott’s so-called Texas Plan. Abbott envisioned a convention of states, the first since the founders gathered in Philadelphia, to adopt nine constitutional amendments. In some respects, the proposed changes would set America back to pre-1787, when the fledgling republic floundered under the Articles of Confederation, depriving the federal government not only of powers created in response to the Civil War, but also some put in place by the original framers.

In a 2016 speech hosted by the University of Chicago chapter of the Federalist Society, Oldham harped on the “illegitimacy” of the “administrative state.” He also made a villain out of James Landis, a largely forgotten Harvard Law School dean who had helped create and went on to run the SEC.

Landis, Oldham said, was the “architect” and “godfather” of modern regulation, who viewed the Constitution as an “inconvenience” to be discarded. To restore its integrity, Oldham described a “Route A” wherein Congress amends the Constitution to roll back regulatory agencies and grant states new powers. Given Congress’ disinclination to do so, Oldham urged the adoption of “Route B,” the Texas Plan’s convention of states. Unmentioned was what might be called Route C: judges taking it upon themselves to remake the balance of power between the federal government and the states.

During his Senate confirmation hearings for the 5th Circuit, Oldham distanced himself from this work, claiming he was simply representing Abbott, his client. “My perspective as an advocate has no bearing on my perspective as a jurist,” he told the Judiciary Committee. But on the bench, Oldham has essentially copied and pasted the grievances that animated the Texas Plan into judicial opinions. In a 2021 case involving constitutional challenges to SEC authority, Oldham returned to Landis, claiming he was heir to a German intellectual lineage, which, Oldham argued, made modern administrative agencies a foreign import fundamentally at odds with the Constitution’s separation of powers. As he had done previously in a state publication promoting the Texas Plan, Oldham quoted a 2014 book by Columbia law professor Philip Hamburger titled Is Administrative Law Unlawful? (His opinion failed to mention that Hamburger leads the nonprofit that had brought the case under review.) Nicholas Bagley, a professor of administrative law at the University of Michigan, describes the “Germanic trope” as a right-wing “fever dream,” and deems Oldham’s citation a “strategy to give academic respectability to fringe legal views.”

Two years later, Oldham heard another challenge to SEC power in which he and his colleagues, squarely at odds with Supreme Court precedent, ordered the agency to enforce some of its actions in federal court rather than before its in-house judges. The judge who wrote the majority opinion quoted Oldham’s earlier SEC opinion, including some of his writing on Landis. In June, the Supreme Court upheld the ruling, casting doubt on the enforcement authority of dozens of agencies. (Remember Route C?)

An attorney who attended Harvard Law School alongside Oldham recognizes his certitude. “He sees himself as an intellectual and he knows he’s very smart,” says the classmate, who asked for anonymity. “And it doesn’t matter if there’s all this precedent that says something else.”

The 5th circuit has been radically transformed by Trump’s appointees, who make up more than a third of the court. But the change wasn’t always smooth. In a recent Texas immigration case, for example, Oldham was at odds with then-Chief Judge Priscilla Richman, who, when first nominated by President George W. Bush in 2001, was viewed as such an extremist that Democrats blocked her appointment. (Her nomination succeeded during Bush’s second term.) While some of the Bush and Reagan appointees regularly join the Trump judges in decisions that push legal boundaries, others have resisted—sometimes publicly. The divide mirrors the broader struggle between old-school Republicans and Trump diehards. And, just as Trump has taken over his party, his judicial appointees are prevailing.

One case in particular lays bare the court’s transformation. At the height of the pandemic, United Airlines announced an employee vaccine mandate. Several workers sued, arguing that getting the shot would violate their religious beliefs. They asked the court for protection under Title VII of the Civil Rights Act. That might sound like a normal request, but legally, it’s cuckoo. Title VII relief comes in the form of damages after a religious violation has occurred. Yet Oldham and another judge found that the courts could grant relief and keep the policy from taking effect. “It totally blew my mind,” says the attorney who practices in the 5th Circuit. Not long ago, it “would have been laughed out of court.”

But it was a dissent in the case that really got people’s attention. Judge Jerry Smith, a conservative Reagan appointee to the circuit, had once hired Ho as his clerk. Smith was also there at Crow’s library for Ho’s swearing-in. But now he warned that nothing, “especially not the law, will thwart this majority’s plans,” adding that Oldham had helped unleash an “orgy of jurisprudential violence.”

“By today’s ruling, the Good Ship Fifth Circuit is afire,” Smith continued. “We need all hands on deck.”

His dissent, perhaps unintentionally, struck the same note as the court’s left-leaning critics: The issue isn’t so much that the 5th Circuit reaches ultraconservative conclusions, but that it breaks all the rules to get there. The last few years have seen the court seize on aggressive procedural maneuvers that give its judges more power. Its expansive view of standing is one key area where, as Vladeck sarcastically puts it, the 5th Circuit has “really covered itself in glory,” with judges repeatedly ignoring precedent so they can rule on cases that excite them. In recent years, the Supreme Court has reversed the 5th Circuit’s decisions on standing five times in politically charged cases, twice unanimously. But the lower court “keeps repeating the same errors,” Vladeck says. “The point is not that they’re getting these things wrong. The point is that they are getting them wrong in a way that is making it possible for them to actually interject themselves even deeper into our social and political debates.”

The 5th Circuit wasn’t always reactionary. Until 1981, its jurisdiction also included Alabama, Georgia, and Florida, and under the leadership of Republican-appointed judges, the court spent the 1960s desegregating the South in the face of violent white supremacism. One of the judges was an Eisenhower Republican felicitously named John Minor Wisdom, for whom the court’s majestic building in downtown New Orleans was dedicated in 1994.

“The 5th Circuit and the US Supreme Court were instrumental in this period of American history where rights were finally actually respected by the federal courts,” says Graves, of True North Research. “In reaction to that, there’s been a concerted effort to take over those courts and put people on the courts who have this fundamental hostility to civil rights and the power of government to protect individual freedoms.”

The transition began with increasingly conservative appointments under President Richard Nixon. But it ramped up under Obama’s tenure, as Senate Republicans stymied many of his judicial nominations, leaving him, in eight years, able to make only three 5th Circuit appointments. Texas’ senators, Cornyn and Cruz, blocked all but one appointment to the court from their state, allowing Trump to tap Ho and another Texan as soon as he entered office. Ultimately, Trump made six appointments in four years.

The decisions now coming out of the Wisdom courthouse are increasingly hostile to its namesake’s legacy. During the 1960s, the court embraced Brown v. Board of Education, which ended the constitutionality of school segregation. At his 2018 confirmation hearing, Oldham refused to say whether Brown was rightly decided.

Justice Thomas spoke that same year at a Dallas Federalist Society event, where he recounted something his former clerk and newly appointed 5th Circuit judge, Ho, had said as he was finishing his clerkship. “‘You know, when I came to this job, I thought it was going to be very complicated,’” Thomas recalled Ho saying. “‘But you know, it’s pretty straightforward, isn’t it?’”

“I think it is,” Thomas concurred, “if you start at the right place.”

That’s a point that could be made of Ho, Oldham, and many of their 5th Circuit colleagues. It’s no mystery where they are headed once you know where they started from.

Imagine Obamacare is dead and millions of Americans have lost health coverage. Abortion is illegal nationwide, pills to end pregnancies are off the market, and doctors wait until the mother’s death is imminent before attempting lifesaving care. Domestic abusers freely carry guns and government attempts to stop untraceable homemade semiautomatic rifles have been quashed, rendering gun licenses and background checks useless. Environmental regulations founder as climate change worsens. With the sidelining of the Securities and Exchange Commission (SEC) and the Consumer Financial Protection Bureau, Wall Street has returned to its greediest days, making bets that threaten economic stability and preying on consumers with predatory loans and hidden fees. Officials are barred from even asking social media platforms to stem disinformation or calls to violence. Police, unrestrained by federal immigration law, round up, detain, and deport suspected immigrants. Washington can no longer fulfill treaty obligations as states erect barriers along US borders, causing international chaos. And organizing a protest against any of the above may result in you being sued successfully, making free speech an expensive proposition.

These are not mere hypotheticals. The 5th Circuit Court of Appeals—transformed by appointees of former President Donald Trump—has issued decisions greenlighting every one of these eventualities. While some were put on ice by the Supreme Court, others remain in effect in Texas, Louisiana, and Mississippi, the three states the circuit covers. In those states, women have no right to end pregnancies that threaten their health, the enforcement powers of dozens of federal agencies are in doubt, and protest organizers are vulnerable to legal retribution. Other 5th Circuit decisions, from a ruling hamstringing the SEC and similar agencies to one legalizing bump stocks—the device that enabled a lone shooter in Las Vegas to kill 60 people and injure more than 500 in just 10 minutes—are now the law of the land. This is neither the outer bounds of what this radical court will do, nor the end of its impact on all Americans. It is the beginning.

The US Supreme Court oversees 13 judicial circuits, each with an appeals court that hears federal cases arising within its jurisdiction. Every term, the high court agrees to review only a small number of appeals from the circuits, which leaves those appeals courts with final say on most matters. The 5th Circuit has been a right-leaning enclave for decades, filled with judges from the Republican strongholds it oversees. But after Trump placed six new judges on the 17-member court, the relatively staid conservatism of Reagan and Bush jurists gave way to the slash-and-burn tactics of the MAGA movement. On their watch, the court’s decisions, substantive and procedural, have defied judicial precedents and norms while conforming to a familiar far-right agenda of neutering Democratic policies, gutting abortion rights, and undermining the authority of federal agencies.

“There is a new breed of Republican-­appointed judge,” says Stephen Vladeck, a Georgetown Law professor who has followed the 5th Circuit closely. “Much like the divide between Trump Republicans and Bush Republicans politically, there’s a divide between Trump Republicans and Bush Republicans judicially. And what the 5th Circuit has, more so than any other court in the country, is a critical mass of Trump judges.”

Their goal is to move the law far to the right. In case after case, the 5th Circuit has issued rulings that even this Supreme Court regularly strikes down. “It should be shocking that a very, very conservative appeals court is still losing so often with the most conservative Supreme Court in our lifetimes,” Vladeck says.

But even rulings that are overturned move the Overton Window, dignifying once unimaginable outcomes as acceptable and expanding the public’s notion of what’s possible. “These judges know what they’re doing,” says David Lat, author of the Original Jurisdiction newsletter and a longtime chronicler of the courts. “When they are stepping out on a limb, they know that some of their more extreme positions are not going to stick even with a very conservative Supreme Court. But it’s all part of a larger conservative legal movement.”

“They’re winning the war,” he adds.

“What the 5th Circuit has, more so than any other court in the country, is a critical mass of Trump judges.”

Some 5th Circuit judges have loftier ambitions: At least two of Trump’s appointees are widely seen as auditioning for a spot on the Supreme Court should the former president reenter the White House. In this scenario, being slapped down by SCOTUS is less an embarrassing rebuke than an acknowledgment of a judge willing to take things further. “You could see in the 5th Circuit signs of what a Trump Supreme Court would really look like,” Vladeck says. “That’s terrifying.”

In the final days of the Supreme Court’s latest term, which ended July 1, the Republican-­appointed justices issued two momentous opinions that expose even long-established federal regulations to legal challenges. The first ruling, in Loper Bright Enterprises v. Raimondo, overturned Chevron deference—a doctrine that had instructed lower courts to defer to federal agencies’ expert interpretations of contested statutes—in effect snatching back that power for itself.

Three days later, the court supercharged its attack on federal authority in a case known as Corner Post by eviscerating the six-year statute of limitations for challenging agency regulations. Now, virtually any litigant with a bone to pick can sue to overturn a regulation, even if it has been on the books for decades. “No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season,” Justice Ketanji Brown Jackson warned in a scathing dissent.

These two decisions have already teed up a “massive wave of antiregulatory lawsuits,” says Georgetown Law professor Brian Galle, and most “will be filed in the 5th Circuit.”

This wouldn’t be a new phenomenon. The circuit is already a mecca for aggressive judge-shopping, the practice of filing in a jurisdiction where judges are more likely to rule in your favor. Federal district courts select which judge hears a given case randomly, but in certain parts of Texas, litigants are virtually guaranteed to draw hardliners who will rule against Democratic policies. This means anyone bringing a right-wing lawsuit with radical, nationwide ramifications can be assured not only of a friendly trial judge, but also that the inevitable appeal will be heard by sympathetic ears.

“If you have a challenge to an agency action, you really want to look at filing in this circuit, because they’re interested in the issues and there’s an ever-increasing amount of good precedent for you,” says Dallas appellate attorney David Coale, whose legal blog, 600 Camp, focuses on the 5th Circuit.

Indeed, Republicans who dislike a rule or program that President Joe Biden has enacted regularly turn to Texas. “The Biden administration can basically not even take a breath without being sued somewhere in the 5th Circuit,” Vladeck observes. Texas judge-shopping helped Biden’s critics halt a key part of his student loan forgiveness plan. It’s why challengers to Obamacare’s free services, including contraception and HIV drugs, found plaintiffs who could sue in Fort Worth’s far-right district court, and why a policy group founded by former Trump officials relocated there from Virginia. It’s why, in Amarillo, a DC-based libertarian think tank sued to block appliance efficiency rules and a Wisconsin group took on a gun regulation. It’s also why Elon Musk fought tooth and nail to prevent his Texas lawsuit claiming the National Labor Relations Board is the “definition of tyranny” from being transferred to California.

Among the most potentially consequential examples of 5th Circuit judge-shopping is the effort by anti-abortion activists to reverse FDA approval of mifepristone, a drug used in medication abortions, which account for nearly two-thirds of terminated pregnancies in the United States. A Christian legal group incorporated a plaintiff organization in Amarillo, where Judge Matthew Kacsmaryk—who worked for a Christian law firm before Trump put him on the bench in 2019—is the sole federal judge. After Kacsmaryk issued a stunning opinion that banned mifepristone nationwide, the 5th Circuit Court of Appeals, rather than bat his ruling down, upheld it in parts. The drug survived only because the statute of limitations for challenging mifepristone’s approval had expired. The Supreme Court reversed the appeals court ruling in June, holding that the plaintiffs had no right to sue, but the case is likely to return to the 5th Circuit soon. Three states have stepped in as new plaintiffs, and thanks to the Corner Post decision, that statute of limitations no longer applies. For legal groups looking to eliminate abortion in the United States, the clearest path runs through the 5th Circuit.

Lisa Graves, who runs True North Research, a watchdog investigating right-wing legal funding, warns that the circuit’s judges “are enshackling the ability of the president to adopt policies that are widely supported and widely needed. And they are doing so with an almost unprecedented arrogance and aggressiveness.”

The 5th Circuit can accomplish its agenda only by upending settled law, and its precedent-breaking rulings gobble up an outsize share of the Supreme Court’s annual docket. It might seem reassuring that SCOTUS overturned 8 of the 11 5th Circuit rulings it reviewed during the most recent term—more rejections than any other circuit. (Fifth Circuit cases also accounted for nearly half of the Supreme Court’s grants of emergency relief, issued when a party asks the court to quickly halt a lower-court decision.) But this pattern of fringe rulings and rebukes serves a broader purpose for the conservative judiciary. It allows the appellate judges to shape national debate on hot-button topics and lets the Supreme Court, by knocking down the 5th’s wackiest rulings, appear more moderate as it trashes precedent and brazenly rewrites the rules of American democracy.

“The issue isn’t so much that the 5th Circuit reaches ultraconservative conclusions, but that it breaks all the rules to get there.”

Within the crop of Trump judges transforming the 5th Circuit, two—James Ho and Andrew Oldham—stand out, not only for their willingness to implement a far-right agenda, but for their perceived ambition to join the Supreme Court.

Temperamentally, they are opposed. Ho is outgoing and adept at making headlines. His opinions read like partisan op-eds. Oldham is quieter, his writing more like a history term paper. But their goals appear broadly similar: a radical remaking of US law that would end abortion rights, restrict the role of the federal government, and elevate the power of individual states. “Ho might be the poster child, but Oldham is the laboring oar, where it’s really his opinions that are doing the most substantive work to try to move things sharply rightward,” Vladeck says. The two men, he adds, are “very different judges working toward the same goals very differently.”

The two judges, who both declined requests to comment, have another reason to hope for a Supreme Court promotion: Ho clerked for Justice Clarence Thomas, Oldham for Justice Samuel Alito, and both have been mentioned as likely replacements for their septuagenarian mentors, who are expected to retire if Trump wins. Both were forged in the fires of Texas’ hard-right partisan combat, a story that began in 1999, when then–state Attorney General John Cornyn created the solicitor general’s office. The federal government has its own solicitor general, a top-tier litigator who represents US interests before the Supreme Court, and Cornyn reasoned that Texas, too, should have such an expert appeals lawyer on staff. Within a few years, the new office was serving an equally important function: grooming the next generation of right-wing judges and politicians.

In 2002, Cornyn was elected to the US Senate and replaced by Greg Abbott, a right-wing brawler who described his job as “I go into the office, I sue the federal government, and I go home.” Abbott, in turn, brought on a hungry young lawyer named Ted Cruz as his solicitor general and instructed him to insert Texas into every high-profile conservative legal fight in the country. Cruz complied with gusto.

Abbott subsequently hired Ho, who’d worked under Cornyn in the Senate and had helped draft a memo to justify the use of torture after the 2001 terrorist attacks, despite Geneva Conventions prohibitions. Ho would later join a private firm where he took on pro bono cases, including appellate work for the First Liberty Institute, the Christian law firm that employed Kacsmaryk before he became a district court judge. Trump nominated Ho for the 5th Circuit in 2017.

Abbott hired Oldham in 2012 to work in the solicitor general’s office, where he helped challenge the Voting Rights Act and then-President Barack Obama’s immigration and environmental policies. Trump chose Oldham for a 5th Circuit spot in 2018. Stuart Kyle Duncan, another Trump appointee to the 5th Circuit, also worked for the solicitor general under Cornyn. In all, Trump appointed six lawyers from that office to federal judgeships.

When Ho joined the 5th Circuit, he asked Justice Thomas to administer his oath of office. A photograph of the swearing-in shows the pair standing before an enormous stone fireplace in the Dallas library of Harlan Crow, the billionaire Republican donor who has come under scrutiny for lavishing expensive gifts on Thomas that the justice failed to disclose.

Three months later, in his first 5th Circuit opinion (a dissent), Ho defended the right of individuals, including billionaires like Crow, to spend as much money on campaigns as they like. The case involved a voter-enacted contribution limit for Austin City Council races, and Ho aligned himself with wealthy donors against the specter of regulation, arguing that as “government grows larger,” fighting back with unlimited political spending “becomes a human necessity.” Ho’s dissent—which also claimed that the modern federal government would be “unrecognizable” to the founders and that the Supreme Court ruling upholding the Affordable Care Act was wrongly decided—made amply clear what kind of Supreme Court justice he would be.

Ho has sent many such signals. In 2022, he asserted in a concurring opinion that the Supreme Court should revive its decision in the 1905 case of Lochner v. New York, which the court had since overturned. While he framed his argument as pro-labor, the Lochner ruling had struck down a law that protected bakers from being forced to work more than 60 hours a week, ushering in decades of broader worker exploitation. Ho also has made clear that he’s vociferously against abortion, which he has called a “moral tragedy,” and has held that the Constitution guarantees Catholic clergy the right to bury fetal remains against the wishes of the would-be parents.

In 2023, when the 5th Circuit Court of Appeals narrowed Kacsmaryk’s mifepristone ruling, allowing the drug to remain on shelves, Ho wrote he would have fully blocked access. Perhaps most alarming was his proposed theory for why a handful of anti-abortion doctors could bring the suit in the first place. It is a foundational principle of law that a plaintiff cannot merely be a concerned bystander. They must have skin in the game, or standing: an actual or likely injury that a court could remedy. Both Kacsmaryk and the 5th Circuit had accepted the doctors’ dubious claim that they might one day encounter a patient suffering adverse effects from mifepristone and be obliged to help that person in violation of their religious beliefs—despite federal conscience laws that ensure they wouldn’t have to.

In June, the Supreme Court rejected that argument, ruling 9–0 that the mifepristone plaintiffs lacked standing, with Justice Brett Kavanaugh patiently explaining, as though lecturing a first-year law student, that the doctors were not suitable plaintiffs.

Ho had not only supported the rejected ruling, but in a concurrence had gone further to construct a standing doctrine for physicians in abortion cases. “Doctors delight in working with their unborn patients,” he wrote, “and experience an aesthetic injury when they are aborted”—a dystopian perversion of the doctor-patient relationship. Graves worked with Ho about 20 years ago on the Senate Judiciary Committee, and remembers him as “ambitious” and “transactional.” But the idea that a woman must remain pregnant for her physician’s viewing pleasure “shows the veneer is off,” she says. “He’s untrammeled by common sense, he’s untrammeled by restraint. He just thinks that he in that role as a federal judge with a lifetime job can do whatever he wants.”

This past July, Ho went where none of his colleagues had dared. In a concurrence in which he approved of the floating barrier that Abbott, now Texas’ governor, had placed in the Rio Grande to thwart migrant crossings, Ho codified the MAGA rhetoric equating immigration with a hostile invasion. Seven judges warned in a dissent that Ho’s theory “would enable Governor Abbott to engage in acts of war in perpetuity.”

At least two of Trump’s 5th Circuit appointees are widely seen as auditioning for the Supreme Court.

Some of Ho’s boldest politicking happens outside the court. At Georgetown Law in 2022, he defended Ilya Shapiro, a professor the school had put on leave for tweeting, in the runup to Justice Jackson’s Supreme Court nomination, that Biden would select a “lesser black woman.” (“If Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me, too,” Ho proclaimed.) Seven months later, he announced he would no longer hire clerks from Yale Law School after students there disrupted conservative speakers. In 2023, Ho expanded his no-hire list after Stanford law students clashed with Duncan, his 5th Circuit colleague, during a campus lecture. Earlier this year, having popularized a broader clerkship boycott phenomenon, he joined 12 other Trump-appointed judges in announcing they would no longer hire clerks from Columbia Law School in light of pro-Palestinian campus protests.

As for judge-shopping, Ho defends the practice: “This isn’t about forum-shopping. It’s about forum-shaming,” he argued in an April speech to a local bar association in Texas. “It’s about shaming judges.”

Ho’s behavior on and off the bench has raised his profile and made his politics crystal clear. “He’s citing things like Fox News or other kinds of conservative publications that you would not normally cite,” says one attorney, who, because they argue cases before the 5th Circuit, asked not to be named. “No one else writes in that way.”

Ho already was on Trump’s 2020 Supreme Court shortlist. Then, last year, the extremist group American Family Association Action, which seeks to infuse the judiciary with biblical views, placed him on a list of six Supreme Court picks for a second Trump term.

Oldham, the other potential Supreme Court contender, has likewise made his mark with opinions that push the law into uncharted waters. But it may be his pre-judicial government service that’s most revealing. When Abbott invited Oldham to Texas to join the solicitor general’s office, Oldham considered it to be “God opening a door.” Oldham and Abbott would go beyond arguing that specific actions of the Obama administration were illegal to assert that the existence of the very agencies implementing the policies was unconstitutional. When Abbott became governor in 2015, Oldham joined him as a top legal adviser, and, according to the Texas Tribune, played a significant role in crafting Abbott’s so-called Texas Plan. Abbott envisioned a convention of states, the first since the founders gathered in Philadelphia, to adopt nine constitutional amendments. In some respects, the proposed changes would set America back to pre-1787, when the fledgling republic floundered under the Articles of Confederation, depriving the federal government not only of powers created in response to the Civil War, but also some put in place by the original framers.

In a 2016 speech hosted by the University of Chicago chapter of the Federalist Society, Oldham harped on the “illegitimacy” of the “administrative state.” He also made a villain out of James Landis, a largely forgotten Harvard Law School dean who had helped create and went on to run the SEC.

Landis, Oldham said, was the “architect” and “godfather” of modern regulation, who viewed the Constitution as an “inconvenience” to be discarded. To restore its integrity, Oldham described a “Route A” wherein Congress amends the Constitution to roll back regulatory agencies and grant states new powers. Given Congress’ disinclination to do so, Oldham urged the adoption of “Route B,” the Texas Plan’s convention of states. Unmentioned was what might be called Route C: judges taking it upon themselves to remake the balance of power between the federal government and the states.

During his Senate confirmation hearings for the 5th Circuit, Oldham distanced himself from this work, claiming he was simply representing Abbott, his client. “My perspective as an advocate has no bearing on my perspective as a jurist,” he told the Judiciary Committee. But on the bench, Oldham has essentially copied and pasted the grievances that animated the Texas Plan into judicial opinions. In a 2021 case involving constitutional challenges to SEC authority, Oldham returned to Landis, claiming he was heir to a German intellectual lineage, which, Oldham argued, made modern administrative agencies a foreign import fundamentally at odds with the Constitution’s separation of powers. As he had done previously in a state publication promoting the Texas Plan, Oldham quoted a 2014 book by Columbia law professor Philip Hamburger titled Is Administrative Law Unlawful? (His opinion failed to mention that Hamburger leads the nonprofit that had brought the case under review.) Nicholas Bagley, a professor of administrative law at the University of Michigan, describes the “Germanic trope” as a right-wing “fever dream,” and deems Oldham’s citation a “strategy to give academic respectability to fringe legal views.”

Two years later, Oldham heard another challenge to SEC power in which he and his colleagues, squarely at odds with Supreme Court precedent, ordered the agency to enforce some of its actions in federal court rather than before its in-house judges. The judge who wrote the majority opinion quoted Oldham’s earlier SEC opinion, including some of his writing on Landis. In June, the Supreme Court upheld the ruling, casting doubt on the enforcement authority of dozens of agencies. (Remember Route C?)

An attorney who attended Harvard Law School alongside Oldham recognizes his certitude. “He sees himself as an intellectual and he knows he’s very smart,” says the classmate, who asked for anonymity. “And it doesn’t matter if there’s all this precedent that says something else.”

The 5th circuit has been radically transformed by Trump’s appointees, who make up more than a third of the court. But the change wasn’t always smooth. In a recent Texas immigration case, for example, Oldham was at odds with then-Chief Judge Priscilla Richman, who, when first nominated by President George W. Bush in 2001, was viewed as such an extremist that Democrats blocked her appointment. (Her nomination succeeded during Bush’s second term.) While some of the Bush and Reagan appointees regularly join the Trump judges in decisions that push legal boundaries, others have resisted—sometimes publicly. The divide mirrors the broader struggle between old-school Republicans and Trump diehards. And, just as Trump has taken over his party, his judicial appointees are prevailing.

One case in particular lays bare the court’s transformation. At the height of the pandemic, United Airlines announced an employee vaccine mandate. Several workers sued, arguing that getting the shot would violate their religious beliefs. They asked the court for protection under Title VII of the Civil Rights Act. That might sound like a normal request, but legally, it’s cuckoo. Title VII relief comes in the form of damages after a religious violation has occurred. Yet Oldham and another judge found that the courts could grant relief and keep the policy from taking effect. “It totally blew my mind,” says the attorney who practices in the 5th Circuit. Not long ago, it “would have been laughed out of court.”

But it was a dissent in the case that really got people’s attention. Judge Jerry Smith, a conservative Reagan appointee to the circuit, had once hired Ho as his clerk. Smith was also there at Crow’s library for Ho’s swearing-in. But now he warned that nothing, “especially not the law, will thwart this majority’s plans,” adding that Oldham had helped unleash an “orgy of jurisprudential violence.”

“By today’s ruling, the Good Ship Fifth Circuit is afire,” Smith continued. “We need all hands on deck.”

His dissent, perhaps unintentionally, struck the same note as the court’s left-leaning critics: The issue isn’t so much that the 5th Circuit reaches ultraconservative conclusions, but that it breaks all the rules to get there. The last few years have seen the court seize on aggressive procedural maneuvers that give its judges more power. Its expansive view of standing is one key area where, as Vladeck sarcastically puts it, the 5th Circuit has “really covered itself in glory,” with judges repeatedly ignoring precedent so they can rule on cases that excite them. In recent years, the Supreme Court has reversed the 5th Circuit’s decisions on standing five times in politically charged cases, twice unanimously. But the lower court “keeps repeating the same errors,” Vladeck says. “The point is not that they’re getting these things wrong. The point is that they are getting them wrong in a way that is making it possible for them to actually interject themselves even deeper into our social and political debates.”

The 5th Circuit wasn’t always reactionary. Until 1981, its jurisdiction also included Alabama, Georgia, and Florida, and under the leadership of Republican-appointed judges, the court spent the 1960s desegregating the South in the face of violent white supremacism. One of the judges was an Eisenhower Republican felicitously named John Minor Wisdom, for whom the court’s majestic building in downtown New Orleans was dedicated in 1994.

“The 5th Circuit and the US Supreme Court were instrumental in this period of American history where rights were finally actually respected by the federal courts,” says Graves, of True North Research. “In reaction to that, there’s been a concerted effort to take over those courts and put people on the courts who have this fundamental hostility to civil rights and the power of government to protect individual freedoms.”

The transition began with increasingly conservative appointments under President Richard Nixon. But it ramped up under Obama’s tenure, as Senate Republicans stymied many of his judicial nominations, leaving him, in eight years, able to make only three 5th Circuit appointments. Texas’ senators, Cornyn and Cruz, blocked all but one appointment to the court from their state, allowing Trump to tap Ho and another Texan as soon as he entered office. Ultimately, Trump made six appointments in four years.

The decisions now coming out of the Wisdom courthouse are increasingly hostile to its namesake’s legacy. During the 1960s, the court embraced Brown v. Board of Education, which ended the constitutionality of school segregation. At his 2018 confirmation hearing, Oldham refused to say whether Brown was rightly decided.

Justice Thomas spoke that same year at a Dallas Federalist Society event, where he recounted something his former clerk and newly appointed 5th Circuit judge, Ho, had said as he was finishing his clerkship. “‘You know, when I came to this job, I thought it was going to be very complicated,’” Thomas recalled Ho saying. “‘But you know, it’s pretty straightforward, isn’t it?’”

“I think it is,” Thomas concurred, “if you start at the right place.”

That’s a point that could be made of Ho, Oldham, and many of their 5th Circuit colleagues. It’s no mystery where they are headed once you know where they started from.

The Supreme Court will begin a new term on Monday, in which it is set to hear pivotal cases about transgender rights, our environment, and gun violence. But the term’s biggest blockbuster could be a case that not only hasn’t yet been filed, but is still just a concept.

That’s because in the next three months, the justices may be asked to inject themselves into the late stages of the 2024 election. If presented with such an opportunity, this could be the term that the Supreme Court elects Donald Trump.

Four years ago, Trump and his allies attempted to overturn his 2020 loss from the White House, while his allies controlled legislatures in the critical states of Pennsylvania, Wisconsin, Arizona, and Georgia, as well as key institutions like the Wisconsin Supreme Court. Trump’s coup failed not because he and his allies lacked power, but because President Joe Biden’s margin of victory was big enough that some allies—including his own attorney general and most Senate Republicans—refused to use that power to illegally keep Trump in office. This year, Trump does not hold as many levers of power. But a faction of his political coalition, the GOP-appointed 6-3 majority on the Supreme Court, controls one of the most important. 

Conservative justices have obvious Trump sympathies and clear incentives to see him back in the White House.

The high court has already been a player in this election. Last term, the justices ensured that Trump’s attempt to steal 2020’s election could not disqualify him from the presidency, issuing a decision assuring he would appear on every ballot. The court delayed Trump’s criminal trial over his attempted coup, then granted him broad immunity from criminal prosecution, preventing damaging courtroom revelations from emerging before voting. In August, the court used its shadow docket to allow Arizona, a key swing state, to require proof of citizenship with voter registration forms at the request of the Republican National Committee.

But perhaps least known—and yet, most important—was Moore v. Harper, a 2023 ruling in which the court set the stage for the next Bush v. Gore scenario by holding that the justices themselves would have the last say when it comes to questions over state-level election rules and disputes.

Twenty-four years ago, the Supreme Court stepped into Florida’s contested presidential race and handed the presidency to Republican George W. Bush. Five Republican-appointed justices overturned the Florida Supreme Court and halted the state’s recount effort. Four Democratic-appointed justices dissented. At the time, the majority acknowledged their election meddling was an exception, not the rule: “Our consideration is limited to the present circumstances,” the majority promised, calling it their “unsought responsibility” to resolve the case.

The decision didn’t just pick the president—it also, in installing George W. Bush, allowed him to reshape the Supreme Court. As younger lawyers, three of the current GOP-appointed justices aided Bush’s Florida legal team in the run up to Bush v. Gore. Another, Clarence Thomas, was part of the decision’s majority. Five of today’s justices personally and significantly benefited from the consequences of the ruling, including by accepting jobs or appointments under Bush’s administration. Not only have none of these conservative jurists expressed remorse about their actions or the decision, with Moore v. Harper they have in fact normalized the court’s meddling so that if the opportunity arises, they can do so again.

In November 2000, John Roberts flew down to Florida to help Bush’s lawyers prepare to argue before the Florida Supreme Court. Six months later, Bush nominated Roberts to the DC Circuit Court of Appeals, and in 2005, tapped him to join the Supreme Court as chief justice. Brett Kavanaugh likewise flew to Florida, where he helped monitor Volusia County’s recount. Kavanaugh went on to work in the Bush White House before the president nominated him to the DC Circuit in 2003; he was confirmed in 2006. The youngest member of today’s court, Amy Coney Barrett, was just a few years out of law school when she was sent to Florida by her Bush-backing law firm to help his legal team with research and briefing. (During her Supreme Court confirmation hearings, she said she didn’t recall the particulars of the work.)

Thomas, the only justice remaining on the court from that time, has been under a cloud of scandal for over a year now due to ethical conflicts, including participating in cases pertaining to the 2020 election despite his wife’s political activities and her support of Trump’s attempts to stay in power. Ginni Thomas’ ties to GOP powerbrokers presented similar issues in 2000, as she was drawing up a list of people to serve in a Bush administration at the same time her husband was providing a critical vote to secure his win.

Were it not for Bush v. Gore, the court as we know it would not exist. As a result of Bush’s appointments of Roberts and Justice Samuel Alito, Thomas’ fringe views found growing support in a new far-right majority. Today, that bloc also includes Justice Neil Gorsuch, who first became a federal judge in 2006, thanks to a nomination from President Bush. So much of the conservative legal movement’s success can be traced back to the ruling—and there’s no reason to think the justices involved regret it.

Bush v. Gore was supposed to be a one-off because it saw the Supreme Court step out of its usual lane to overturn a state court decision on state election administration, which is generally left up to the states. But last year, in Moore v. Harper, the Supreme Court opened the door to similar interventions whenever it decides a state court has “transgress[ed] the ordinary bounds of judicial review” at the expense of state legislative power. With voting underway for 2024, this vague and untested standard provides a new opening for the court to meddle in state election matters.

“The size of this loophole is unknown at this point,” warns Jessica Marsden, an attorney at Protect Democracy. “But there are cases percolating up that will raise this issue and test the size.” As Marsden explained during a Supreme Court preview hosted by the Center for American Progress, such cases could affect “either how voting happens in November or even which ballots get counted.” 

In the critical battleground of Pennsylvania, the state Supreme Court is currently deciding whether to count mail-in ballots that, while valid, do not conform to every rule, such as missing a handwritten date on the envelope. If the state Supreme Court allows such ballots to be counted, under the new rationale of Moore v. Harper, the US Supreme Court could find justification to intervene and toss out tens of thousands of ballots in the most contested state in the nation.

Marsden also pointed to Nevada, another battleground, where the Republican National Committee has tried to roll back a policy of accepting mail ballots that arrive after Election Day. “If Nevada were the decisive state and they hadn’t resolved this issue ahead of the election,” Marsden said, “I don’t know that I’m optimistic that in that situation that the Supreme Court would decline to reach in and decide.”

Still, Marsden sounded a note of cautious optimism about the slim chances of another Bush v. Gore. “It’s actually very hard to tee up an issue for the Supreme Court that would be outcome determinative,” she said. Indeed, the best way for the Harris campaign to keep the Supreme Court out of the race is to win by enough that their interventions would be futile.

It may be hard to create the conditions where the court’s Republican-appointed justices are in a position to decide—but the Trump campaign and its allies are certainly trying. Four years ago, the courts acted as a bulwark against Trump’s attempts to overturn the election, including the Supreme Court, which rebuffed his challenges. And for good reason: the cases were extremely weak. “The challenges to the election outcome last time were last ditch efforts by a few fringe actors like John Eastman,” says Alex Aronson, executive director of Court Accountability, a progressive group pushing Supreme Court reform. Trump’s rag-tag team was clearly going to lose, and even allies like Bill Barr, his own attorney general, jumped ship. But this time, Aronson notes, there is a “more serious cohort of lawyers and funders behind these challenges.”

The conservative legal movement’s success traces back to Bush v. Gore.

Barr, for example, is on the board of a group involved in voter suppression lawsuits, including one of the challenges to Pennsylvania mail ballots. Attorneys in the funding orbit of Leonard Leo, the dark money patriarch of the conservative judicial movement who helped select and confirm the GOP-appointed justices, are behind suits to purge voter rolls and change voting rules. And the Republican National Committee itself is strategically litigating around the country to make it harder to vote and to invite courts to throw out ballots. When the Supreme Court allowed Arizona’s requirement that new voters show proof of citizenship, they handed a win to the RNC and a law firm backed by Leo. The people and groups behind the legal attacks on the 2024 election are in the mainstream of the conservative movement, which could induce the justices to take up the opportunities those lawyers will bring to the courts.

The conservative justices not only have obvious Trump sympathies, but clear incentives to see him back in the White House. Two of them, Alito and Thomas, are widely believed to want to retire, but would only do so under a Republican administration. And while their movement to remake the legal landscape is well underway—from making guns more available, abortion unavailable, religion pervasive, and environmental regulation impossible—their goals would be a fait accompli under a second Trump administration. Meanwhile, Harris is openly campaigning on reforming the Supreme Court: It’s not only the justices’ legal project that could hinge on the outcome of the election—it’s also their jobs. 

Back in March, the court issued an anonymous opinion reversing Colorado’s decision to keep Trump off the ballot on the grounds that he had mounted an insurrection, a disqualification discussed in the 14th Amendment. But Roberts—who was later revealed to be the author—and four other conservatives went much further to protect Trump from 0ther legal challenges under the 14th Amendment. 

There was no need to take this additional step, Justice Sonia Sotomayor wrote, joined by the Democratic-appointed justices, except to help an “oathbreaking insurrectionist” become president. She prominently quoted from a dissent in Bush v. Gore: “What it does today, the Court should have left undone.”

For some on the court, Bush v. Gore is a reminder of what it should not do. For other justices, it may now be a roadmap for what it could do.

The Supreme Court will begin a new term on Monday, in which it is set to hear pivotal cases about transgender rights, our environment, and gun violence. But the term’s biggest blockbuster could be a case that not only hasn’t yet been filed, but is still just a concept.

That’s because in the next three months, the justices may be asked to inject themselves into the late stages of the 2024 election. If presented with such an opportunity, this could be the term that the Supreme Court elects Donald Trump.

Four years ago, Trump and his allies attempted to overturn his 2020 loss from the White House, while his allies controlled legislatures in the critical states of Pennsylvania, Wisconsin, Arizona, and Georgia, as well as key institutions like the Wisconsin Supreme Court. Trump’s coup failed not because he and his allies lacked power, but because President Joe Biden’s margin of victory was big enough that some allies—including his own attorney general and most Senate Republicans—refused to use that power to illegally keep Trump in office. This year, Trump does not hold as many levers of power. But a faction of his political coalition, the GOP-appointed 6-3 majority on the Supreme Court, controls one of the most important. 

Conservative justices have obvious Trump sympathies and clear incentives to see him back in the White House.

The high court has already been a player in this election. Last term, the justices ensured that Trump’s attempt to steal 2020’s election could not disqualify him from the presidency, issuing a decision assuring he would appear on every ballot. The court delayed Trump’s criminal trial over his attempted coup, then granted him broad immunity from criminal prosecution, preventing damaging courtroom revelations from emerging before voting. In August, the court used its shadow docket to allow Arizona, a key swing state, to require proof of citizenship with voter registration forms at the request of the Republican National Committee.

But perhaps least known—and yet, most important—was Moore v. Harper, a 2023 ruling in which the court set the stage for the next Bush v. Gore scenario by holding that the justices themselves would have the last say when it comes to questions over state-level election rules and disputes.

Twenty-four years ago, the Supreme Court stepped into Florida’s contested presidential race and handed the presidency to Republican George W. Bush. Five Republican-appointed justices overturned the Florida Supreme Court and halted the state’s recount effort. Four Democratic-appointed justices dissented. At the time, the majority acknowledged their election meddling was an exception, not the rule: “Our consideration is limited to the present circumstances,” the majority promised, calling it their “unsought responsibility” to resolve the case.

The decision didn’t just pick the president—it also, in installing George W. Bush, allowed him to reshape the Supreme Court. As younger lawyers, three of the current GOP-appointed justices aided Bush’s Florida legal team in the run up to Bush v. Gore. Another, Clarence Thomas, was part of the decision’s majority. Five of today’s justices personally and significantly benefited from the consequences of the ruling, including by accepting jobs or appointments under Bush’s administration. Not only have none of these conservative jurists expressed remorse about their actions or the decision, with Moore v. Harper they have in fact normalized the court’s meddling so that if the opportunity arises, they can do so again.

In November 2000, John Roberts flew down to Florida to help Bush’s lawyers prepare to argue before the Florida Supreme Court. Six months later, Bush nominated Roberts to the DC Circuit Court of Appeals, and in 2005, tapped him to join the Supreme Court as chief justice. Brett Kavanaugh likewise flew to Florida, where he helped monitor Volusia County’s recount. Kavanaugh went on to work in the Bush White House before the president nominated him to the DC Circuit in 2003; he was confirmed in 2006. The youngest member of today’s court, Amy Coney Barrett, was just a few years out of law school when she was sent to Florida by her Bush-backing law firm to help his legal team with research and briefing. (During her Supreme Court confirmation hearings, she said she didn’t recall the particulars of the work.)

Thomas, the only justice remaining on the court from that time, has been under a cloud of scandal for over a year now due to ethical conflicts, including participating in cases pertaining to the 2020 election despite his wife’s political activities and her support of Trump’s attempts to stay in power. Ginni Thomas’ ties to GOP powerbrokers presented similar issues in 2000, as she was drawing up a list of people to serve in a Bush administration at the same time her husband was providing a critical vote to secure his win.

Were it not for Bush v. Gore, the court as we know it would not exist. As a result of Bush’s appointments of Roberts and Justice Samuel Alito, Thomas’ fringe views found growing support in a new far-right majority. Today, that bloc also includes Justice Neil Gorsuch, who first became a federal judge in 2006, thanks to a nomination from President Bush. So much of the conservative legal movement’s success can be traced back to the ruling—and there’s no reason to think the justices involved regret it.

Bush v. Gore was supposed to be a one-off because it saw the Supreme Court step out of its usual lane to overturn a state court decision on state election administration, which is generally left up to the states. But last year, in Moore v. Harper, the Supreme Court opened the door to similar interventions whenever it decides a state court has “transgress[ed] the ordinary bounds of judicial review” at the expense of state legislative power. With voting underway for 2024, this vague and untested standard provides a new opening for the court to meddle in state election matters.

“The size of this loophole is unknown at this point,” warns Jessica Marsden, an attorney at Protect Democracy. “But there are cases percolating up that will raise this issue and test the size.” As Marsden explained during a Supreme Court preview hosted by the Center for American Progress, such cases could affect “either how voting happens in November or even which ballots get counted.” 

In the critical battleground of Pennsylvania, the state Supreme Court is currently deciding whether to count mail-in ballots that, while valid, do not conform to every rule, such as missing a handwritten date on the envelope. If the state Supreme Court allows such ballots to be counted, under the new rationale of Moore v. Harper, the US Supreme Court could find justification to intervene and toss out tens of thousands of ballots in the most contested state in the nation.

Marsden also pointed to Nevada, another battleground, where the Republican National Committee has tried to roll back a policy of accepting mail ballots that arrive after Election Day. “If Nevada were the decisive state and they hadn’t resolved this issue ahead of the election,” Marsden said, “I don’t know that I’m optimistic that in that situation that the Supreme Court would decline to reach in and decide.”

Still, Marsden sounded a note of cautious optimism about the slim chances of another Bush v. Gore. “It’s actually very hard to tee up an issue for the Supreme Court that would be outcome determinative,” she said. Indeed, the best way for the Harris campaign to keep the Supreme Court out of the race is to win by enough that their interventions would be futile.

It may be hard to create the conditions where the court’s Republican-appointed justices are in a position to decide—but the Trump campaign and its allies are certainly trying. Four years ago, the courts acted as a bulwark against Trump’s attempts to overturn the election, including the Supreme Court, which rebuffed his challenges. And for good reason: the cases were extremely weak. “The challenges to the election outcome last time were last ditch efforts by a few fringe actors like John Eastman,” says Alex Aronson, executive director of Court Accountability, a progressive group pushing Supreme Court reform. Trump’s rag-tag team was clearly going to lose, and even allies like Bill Barr, his own attorney general, jumped ship. But this time, Aronson notes, there is a “more serious cohort of lawyers and funders behind these challenges.”

The conservative legal movement’s success traces back to Bush v. Gore.

Barr, for example, is on the board of a group involved in voter suppression lawsuits, including one of the challenges to Pennsylvania mail ballots. Attorneys in the funding orbit of Leonard Leo, the dark money patriarch of the conservative judicial movement who helped select and confirm the GOP-appointed justices, are behind suits to purge voter rolls and change voting rules. And the Republican National Committee itself is strategically litigating around the country to make it harder to vote and to invite courts to throw out ballots. When the Supreme Court allowed Arizona’s requirement that new voters show proof of citizenship, they handed a win to the RNC and a law firm backed by Leo. The people and groups behind the legal attacks on the 2024 election are in the mainstream of the conservative movement, which could induce the justices to take up the opportunities those lawyers will bring to the courts.

The conservative justices not only have obvious Trump sympathies, but clear incentives to see him back in the White House. Two of them, Alito and Thomas, are widely believed to want to retire, but would only do so under a Republican administration. And while their movement to remake the legal landscape is well underway—from making guns more available, abortion unavailable, religion pervasive, and environmental regulation impossible—their goals would be a fait accompli under a second Trump administration. Meanwhile, Harris is openly campaigning on reforming the Supreme Court: It’s not only the justices’ legal project that could hinge on the outcome of the election—it’s also their jobs. 

Back in March, the court issued an anonymous opinion reversing Colorado’s decision to keep Trump off the ballot on the grounds that he had mounted an insurrection, a disqualification discussed in the 14th Amendment. But Roberts—who was later revealed to be the author—and four other conservatives went much further to protect Trump from 0ther legal challenges under the 14th Amendment. 

There was no need to take this additional step, Justice Sonia Sotomayor wrote, joined by the Democratic-appointed justices, except to help an “oathbreaking insurrectionist” become president. She prominently quoted from a dissent in Bush v. Gore: “What it does today, the Court should have left undone.”

For some on the court, Bush v. Gore is a reminder of what it should not do. For other justices, it may now be a roadmap for what it could do.