Impact of the Election on the Federal Judiciary

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The next president will be responsible for filling vacancies on federal courts and could sign into law reforms for the Supreme Court.

On paper, voters will be casting their ballots on Nov. 5 for just one presidential candidate and a handful of other candidates for federal office. Their choices, however, will ultimately bear on dozens of other powerful officials who aren’t on the ballot but can nonetheless determine the future course of the country.

Upon assuming the presidency next January, Vice President Kamala Harris or former President Donald Trump will receive the power to nominate these individuals who could nevertheless rule against the policies they seek to implement.

Federal courts, which are established by Article III of the Constitution, often have the final say over whether the policies voters seek with their ballot can take effect.

Lower Courts

According to the Justice Department, the nation has 94 district or trial courts and more than 670 seats for district court judges. Above those courts are 13 appeals courts, which are divided into 12 federal circuits covering specified regions of the country and the 13th the Federal Circuit Court that only hears specialized cases.

This year could be even more consequential for the federal judiciary than previous years, as the Senate has approved a bipartisan package to expand the federal judiciary by 66 seats incrementally over the next 10 years. Besides those new seats, the new president will be expected to fill an untold number of vacancies created by judges leaving their current seats.

Trump has pledged to “totally reform” the Foreign Intelligence Surveillance Court, which hears government requests for intelligence-related searches and electronic surveillance.

“So many judges have seen so many applications that they know were wrong, or at least they must have known,” the former president said last year. “They do nothing about it, they’re lied to.”

The Heritage Foundation’s Judicial Appointment Tracker shows that each president since Ronald Reagan has nominated well over 100 judges during their times in office. But with an aging judiciary, this number has been increasing in recent years. The median age of federal judges reached 70 for the first time in 2023.

During his first term in office, Trump nominated 281 judges, while the U.S. Senate confirmed 220 nominations for district and appeals courts. President Joe Biden has nominated 241 and the Senate has confirmed 231. For comparison, President Barack Obama saw 160 confirmations across his two terms as president.

Heritage Foundation Vice President John Malcolm told The Epoch Times that presidents “have a tremendous impact when it comes to appointing lower court federal judges, who receive life tenure and often serve for decades after the president who appointed them leave office.”

“Over a four-year term, on average, a president will appoint around 22 percent of the federal judiciary. And since the Supreme Court hears very few cases, the buck usually stops with the lower federal courts, and that can include decisions in cases of great national importance.”

Federal courts can also halt key portions of presidents’ agendas through nationwide injunctions, which have grown in number in recent years and earned scrutiny from the Supreme Court. For example, courts have placed nationwide injunctions on Biden’s student loan forgiveness policy and Trump’s temporary travel ban.

Both Justices Neil Gorsuch and Ketanji Brown Jackson expressed skepticism about the use of a nationwide injunction against the Food and Drug Administration’s abortion pill regulations.

“We’ve had, one might call it, a rash of universal injunctions or vacatures,” Gorsuch said during oral argument in March. “And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”

Supreme Court Reforms

Federal district and appellate courts have immense power—albeit with some restrictions—to rule on policies from state and federal actors.

Decisions by the lower courts, however, are ultimately subject to review by the nation’s highest court. For example, less than a week before the 2024 elections, the Supreme Court blocked the effects of two other federal courts that halted Virginia’s effort to purge noncitizens from its voter rolls. Virginia can remove the noncitizens.

Trump’s Supreme Court nominees helped deliver decisions on challenging issues such as abortion, administrative law, and presidential power that have refueled calls for reform.

The Trump campaign has praised the decisions of the former president’s nominees, but hasn’t said whether he would support reforms to the highest court such as a binding ethics code or term limits. The Republican National Committee’s 2024 platform pledged to keep the court at nine justices and said it would “not allow the Democrat Party to increase this number.”

Decisions supported by Trump-appointed justices, as well as recent ethics scandals surrounding Justices Samuel Alito and Clarence Thomas, have prompted a flurry of proposals from Congress and Trump’s opponent in the election.

Harris has expressed support for sweeping reforms that would alter the composition of the court and change the Constitution. She backed Biden’s multi-pronged approach, unveiled in July, to impose term limits, pass a binding ethics code for the justices, and ratify a constitutional amendment designed to overturn the court’s ruling on presidential immunity.

She also indicated she is open to expanding the number of justices on the court, known as court packing.

Packing the court could mitigate the effects of the court’s tenuous 6–3 conservative-leaning majority, which has also seen divisions on critical issues. That majority could change even without court packing if Thomas or Alito—the courts two eldest members—retire.

It’s also unclear how an 18-year term limit would impact the justices who have already served longer than that. Judicial Crisis Network President Carrie Severino, a former clerk for Thomas, said in July that the “Senate Democrats’ unconstitutional term limits bill would force Justice Thomas and Chief Justice Roberts off the Court.”

Forcing Roberts and Thomas to retire would open up space for two new justices who, if they lean liberal, could flip the majority on the court back in the other direction.

Overall, it’s unclear how far any of these reforms will go, given they could face review by the very justices they seek to regulate.

Alito has cast doubt on the effectiveness of Congress’ reforms, warning that congressional oversight of the court would undermine the separation of powers principle intentionally outlined in the Constitution.

He told The Wall Street Journal last year that “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”