A growing number of conservative federal appeals judges are crafting opinions widely interpreted as auditions for potential Supreme Court vacancies, despite no seats currently being opened. Legal experts note these judges are employing vulgar language, video dissents, and pronounced ideological shifts to signal their readiness to President Donald Trump. Trump is anticipated to secure another nomination should Justice Samuel A. Alito Jr., 76, retire at the conclusion of his current term in about a month.
Senate Republicans have positioned themselves to confirm a successor before the November midterm elections, when their majority could diminish.
The most recent example occurred on March 12 when Judge Lawrence VanDyke of the 9th U.S. Circuit Court of Appeals commenced a dissent in Olympus Spa v. Armstrong with the phrase: “This is a case about swinging dicks.” The case centered on a Korean women-only nude spa in Lynnwood, Washington that refused to admit transgender women. VanDyke filed this dissent after the full court declined to rehear a panel ruling against the spa.
Colleagues on the circuit described the language as “crude and vitriolic.” Adrian Vermeule, a conservative Harvard Law School professor, characterized the opinion as an audition for a “norm-breaking” president.
A year earlier, VanDyke had released an 18-minute video dissent in Duncan v. Bonta, a Second Amendment challenge to California’s ban on magazines holding more than 10 rounds. In the video, recorded in his chambers with a long gun behind him, he handled multiple firearms to argue that magazines qualify as protected arms.
California Attorney General Rob Bonta (D) labeled the video “unique” and “unprecedented.” The Supreme Court is currently considering whether to accept the case.
Additionally, Judge James C. Ho of the 5th Circuit—a former Clarence Thomas clerk often listed on Supreme Court shortlists—has appeared to reverse longstanding views on birthright citizenship following Trump’s reelection. In a 2011 Wall Street Journal op-ed, Ho defended birthright citizenship for children of immigrants. However, in a 2024 interview with law professor Josh Blackman, he stated that the children of “invading aliens” were not entitled to it, aligning with Trump’s position on illegal immigration as an invasion. Ho has also noted potential conflicts if his wife’s appellate practice at Gibson Dunn interfered with his nomination.
Another 5th Circuit Trump appointee, Judge Andrew Oldham, penned a 130-page dissent in W.M.M. v. Trump last September, arguing courts cannot review Trump’s use of the 1798 Alien Enemies Act to deport Venezuelan gang members accused of crimes to a prison in El Salvador. In his dissent, Oldham wrote: “We don’t get to demand the President’s homework.”
Legal analysts attribute this trend to a 2017 Senate rule change that eliminated the filibuster for Supreme Court nominees. Daniel Epps, a law professor at Washington University, stated, “That significantly changes the incentives for people, and judges in particular, who are trying to position themselves to be nominees.”
Mike Fragoso, former chief counsel to Senate Majority Leader Mitch McConnell, R-Ky., noted that “in the Trump era, writing buzzy opinions can’t hurt a judge’s Supreme Court prospects.”
Senator Ted Cruz of Texas and Senator Mike Lee of Utah have also been considered potential nominees should Alito step down.
