The Supreme Court & Trump's Second Term

Donald Trump appointed three of the nine Supreme Court justices in his first term: Neil Gorsuch (2017), Brett Kavanaugh (2018), and Amy Coney Barrett (2020). Those three appointments, combined with the existing conservative presence of Chief Justice John Roberts, Clarence Thomas, and Samuel Alito, produced the 6-3 conservative supermajority that has reshaped American constitutional law since 2022. The 2022 Dobbs decision overturning Roe v. Wade was its most visible act, but the Court has also curtailed administrative agency authority (West Virginia v. EPA, 2022; Loper Bright Enterprises v. Raimondo, 2024), expanded gun rights (Bruen, 2022), and delivered the presidential immunity ruling that enabled Trump's second-term assertiveness (Trump v. United States, 2024).

Public approval of the Supreme Court reached historic lows in the wake of the Dobbs ruling. Gallup tracking showed SCOTUS approval at 40% in 2022, the lowest since Gallup began measuring it. By early 2026, approval has recovered marginally to 43%, but remains well below the 58-62% range that was typical through the 2000s and 2010s. The approval collapse is driven almost entirely by Democrats and Democrat-leaning independents: 76% of Republicans approve of the Court's direction; only 16% of Democrats do. The Court has become as partisan a brand as Congress or the presidency — a development with significant implications for its long-term institutional authority.

Trump's executive order restricting birthright citizenship — asserting that children born in the US to parents without legal status are not automatically citizens — is the most constitutionally audacious of his second-term EOs. The 14th Amendment, ratified in 1868, states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens." The Supreme Court has not directly ruled on birthright citizenship in the modern era; the 1898 case United States v. Wong Kim Ark established citizenship for children of lawful permanent residents, but did not address unauthorized immigrants.

Three federal district courts blocked the EO within days of its signing, finding it facially unconstitutional. Multiple circuit courts upheld the blocks. The administration argued for a narrowed interpretation of "subject to the jurisdiction thereof" that would exclude children of unauthorized immigrants — a reading that constitutional scholars overwhelmingly reject but that conservatives have advocated for decades. The case reached the Supreme Court in 2025, with the Court's eventual ruling expected to be one of the most consequential in a generation regardless of outcome.

United States v. Skrmetti, argued before the Supreme Court in December 2024, tests whether Tennessee's law banning gender-affirming care for transgender minors violates the Equal Protection Clause of the 14th Amendment. The Biden administration brought the case; when Trump took office in January 2025, his DOJ switched sides, supporting Tennessee's ban. This reversal — where the federal government argued against a constitutional right it had previously defended — was itself historically unusual and drew criticism from legal observers across the ideological spectrum as inappropriately litigating against the federal interest the DOJ was supposed to represent.

The case's electoral significance extends beyond the specific policy. Gender-affirming care for minors is one of the most sharply polarized issues in contemporary American politics, with polling showing 62% of Republicans supporting state bans and 71% of Democrats opposing them. Among independents, the split is closer: 49% support state authority to ban such care, 44% oppose. The issue has been central to Republican legislative strategies in 2025-2026, with dozens of states passing similar bans, each creating potential new litigation flashpoints regardless of how Skrmetti is decided.

The Supreme Court's July 2024 decision in Trump v. United States held that the President enjoys absolute immunity from criminal prosecution for "core constitutional powers" and "presumptive" immunity for all official acts. The ruling effectively paused or ended the federal criminal cases related to Trump's conduct before and during January 6, 2021, as the Court remanded the proceedings with instructions that made completing a trial before the election impossible. Its long-term constitutional legacy, however, is less about the specific criminal cases and more about the outer boundaries of executive authority it implies.

Trump's legal team has cited the immunity ruling broadly — including in arguments defending EOs that have been challenged on statutory grounds. Courts adjudicating these challenges have generally declined to treat the immunity ruling as granting unlimited legislative power; immunity from criminal prosecution is legally distinct from the question of whether a given EO exceeds statutory or constitutional authority. But the ruling has contributed to an environment in which the administration is more aggressive about asserting executive authority, knowing that the personal legal risk to the president for official acts has been substantially reduced.

Clarence Thomas (76) and Samuel Alito (75) are the oldest justices on the current Court and both were appointed by Republican presidents. A retirement by either during the 119th or 120th Congress (2025-2027) would allow Trump to replace a conservative justice with a younger conservative, cementing the 6-3 majority for a generation. This is the scenario that Democratic donors, activists, and strategists most frequently describe as their nightmare: a Court that retains its conservative supermajority through at least the 2050s, regardless of election outcomes.

A liberal justice vacancy is a different scenario. Sonia Sotomayor (71) has declined to say whether she plans to retire. A health event or retirement creating a liberal vacancy could give Trump a 7-2 supermajority — a scenario that Democrats cite as the single most powerful motivation to win the Senate in 2026. The Senate confirms Supreme Court nominees, making Senate control the linchpin of the vacancy scenario. Both parties' Senate committees have increased fundraising specifically framing Senate races as SCOTUS-defining.

Pew Research (January 2026) found that 54% of registered voters say Supreme Court decisions are a major factor in how they vote in midterms — up from 41% in 2018 and 47% in 2022. The increase is driven almost entirely by Democratic voters (68% say it's a major factor) and Democrat-leaning independents (59%). Among Republican voters, 49% cite SCOTUS as a major factor — lower than Democrats, but still substantial. The asymmetry matters: when an issue motivates one side more than the other, it functions as a net turnout driver for that side.

Democrats are running explicit SCOTUS-themed messaging in at least 12 of the 23 competitive Senate seats up in 2026. The argument combines existing grievances (Dobbs) with 2025-2026 term cases (Skrmetti, birthright citizenship) and vacancy speculation. Republicans counter by arguing that SCOTUS is restoring proper constitutional limits on federal power and delivering what their voters elected Trump and Republican senators to accomplish. The fact that Republicans must defend the Court they shaped while Democrats attack it creates a structural asymmetry: defenders of the status quo rarely outperform attackers when the status quo has below-50% approval ratings.