Neither the stakes nor the opportunity are quite so high as they were in 2016, when the winner of the election would fill the open seat held by the late Antonin Scalia (and perhaps a vacancy or two more), determining which party controlled the high court for the next few decades. But Trump will still be able to cement his legacy further on the federal bench, one that already includes three Supreme Court justices, over 50 appellate jurists, and more than 230 federal judges.

The first way he could do so, of course, is with more additions to the Supreme Court. The likeliest retirees are Justices Samuel Alito and Clarence Thomas. Both men are in their mid-70s and the subject of considerable speculation about if and when they might retire. While some figures in the conservative legal movement scoff at the idea that either will step down anytime soon, the consensus is that neither wants to follow in the footsteps of Ruth Bader Ginsburg. Moreover, a GOP majority in the Senate is only guaranteed for the next two years, an extra inducement to depart sooner rather than later. Should both men leave, Trump would become the first president to appoint a majority of the court since Dwight Eisenhower. 

Though Trump didn’t release a list of possible Supreme Court justices this time as he did in 2016 and 2020, many of the names on those earlier rosters are likely to be in play for any forthcoming vacancies. Contenders include Amul Thapar of the 6th Circuit, Andrew Oldham, Kyle Duncan, and James Ho of the 5th Circuit, Neomi Rao of the District of Columbia Circuit, Patrick Bumatay and Lawrence VanDyke of the 9th Circuit, and Barbara Lagoa (the runner-up to Justice Amy Coney Barrett) of the 11th Circuit. One thing seems certain: Unless he becomes the first president in ages to pluck someone from elected office, whoever he picks for the Supreme Court is almost certain to be, as Barrett, someone Trump himself appointed to the circuit courts. 

Trump returns to the Oval Office with possibly four openings on the circuit courts, fewer than in 2017. According to data compiled by National Review’s Ed Whelan, he could replace around 30 judges appointed by Republican presidents and two dozen appointed by Democrats if they all take senior status by the end of his term. But the total is likely to be smaller than that, especially on the Democratic side. As a result, Trump won’t come close to matching the 54 circuit judges he appointed in his initial term, let alone the 19 seats he was able to flip, which will prevent him from flipping any courts, either (he flipped three circuits last time). Several judges Trump appointed to federal district courts could be in line for promotion, including the ones who overturned the Food and Drug Administration’s authorization of the abortion pill, rejected President Joe Biden’s COVID-19 transportation mask mandate, and threw out the classified documents case against him.

Something that might change is who selects and vets prospective judges. While the Federalist Society played a leading role in Trump’s first term, that august organization has seen its star dim lately, part of the overall reckoning on the Right unleashed by Trump. Instead of Leonard Leo, longtime head of conservatism’s preeminent legal group, Trump’s advisers on judicial nominees will be figures who espouse the more confrontational, combative approach favored by MAGA’s legal wing, the Washington Post reported just before the election. But they don’t just want “bold and fearless judges,” as one of those advisers characterized the kind of jurists they’re looking for. They want bold and fearless attorneys, too, ones who won’t thwart or stymie more hard-line policies, which they believe happened during Trump’s first term. Hence, over a year ago, per the New York Times, Trump’s allies were “building new recruiting pipelines separate from the Federalist Society” that could provide “a more aggressive breed of right-wing lawyer” to staff a second Trump administration.

Bold, fearless, and aggressive is what his opponents will be. Just as in his first term, they are sure to sue over anything and everything he does. As soon as Trump was declared the victor of this year’s election, blue states, as Politico described it, began “plotting to thwart Trump.” Gov. Gavin Newsom (D-CA), for example, called a special session of his state’s legislature to allocate funding for lawsuits and take other steps to bolster the state’s impending anti-Trump efforts. 

If Newsom sounds confident, even arrogant, about his chances of frustrating Trump, it’s not without justification. The Golden State sued Trump over a hundred times and won most of the disputes. For all his vaunted success on the courts, Trump wasn’t nearly as successful in court. Not least because of the shoddy, corner-cutting procedures his administration engaged in early on, particularly on environmental issues, which made it easy for judges to spurn him. 

The courts dealt Trump numerous setbacks while he was president. The Supreme Court blocked his attempts to rescind Deferred Action for Childhood Arrivals, the program allowing illegal immigrants brought to the United States as children to stay in the country, and add a citizenship question to the 2020 census. While it eventually allowed his so-called Muslim ban to go into effect, it did so only after forcing him to water it down by rejecting one of its earlier iterations. The justices also allowed House Democrats to subpoena his tax records and blocked other attempts by Trump to prevent investigators from accessing his personal and business records. 

Trump has vowed to deploy the military to the border and begin mass deportations of illegal immigrants, which multiple blue jurisdictions have promised to stand in the way of, pull funding from schools that promote gender identity and coddle antisemitic protesters, roll back environmental regulations and undo Biden’s climate change initiatives, and get tougher on crime. He has mulled refusing to spend money appropriated by Congress, something the president is barred from doing by law. He is certain to use the Federal Vacancies Reform Act to install loyalists at various agencies if Congress rejects his nominees, though this would be a tamer alternative than his apparently abandoned demand that congressional Republicans allow him to make recess appointments of his Cabinet picks. Trump has also mused about ending birthright citizenship by fiat, in seeming violation of the 14th Amendment. He has stated his intent to fire and reclassify thousands of civil servants and may even try to force federal employees who have been working from home since COVID-19 to return to the office. He could also fire Biden appointees to the boards of independent agencies such as the National Labor Relations Board, whose members the president generally cannot terminate because of a 1935 Supreme Court decision. Last but hardly least, as president, he has vast authority to declare national emergencies. Just as in his first term, therefore, many of the legal battles Trump faces will concern his use of executive power.

“Courts restrained Trump in his 1st term. Will they ‘check’ his power again?” ABC News wondered shortly after the election. Perhaps. But there is reason to believe he will have a stronger hand this time around. Trump won the popular vote, which gives him the semblance of a mandate and might afford him a bit more leeway with skeptical judges. For another thing, the Resistance’s favorite venue for filing challenges to Trump is no longer so favorable. The 10 judges he added to the 9th Circuit Court of Appeals, which covers California and other Western states, mean there is a far stronger chance than before that the panels reviewing any negative rulings have Republican majorities. The courts generally should be less hostile, not only because of Trump’s myriad appointments but also because they’ll have less to work with. Having one stint under its belt and spent the last four years planning for the next one, Team Trump comes back to 1600 Pennsylvania Ave. better prepared and more aware of the pitfalls and roadblocks in its way. Its initiatives, therefore, are much less likely to be the hasty, slapdash affairs that were so easy for judges to shoot down. 

Not that all of his executive actions were shot down. The courts did sign off on some of them. And because many Biden administration policies Trump is likely to reverse remain in limbo because of litigation, he could repeal them simply by refusing to appeal an adverse judgment, which would let him kill them without having to go through a court battle first. Among the policies in the first category are the “Muslim ban” and expedited removal of illegal immigrants. The appeals courts divided on Trump’s rule expanding which immigrants count as a “public charge” because they might require welfare and can thus be denied entry, his efforts to deny funding to “sanctuary cities,” and his rule denying Title X family planning funding to abortion providers. But these splits just mean the Supreme Court can intervene as soon as Trump reimplements them, without waiting for further action by the lower courts. Net neutrality, the rewriting of Title IX to include sexual orientation and gender identity, DACA, new water pollution limits, an expansion of the definition of a “seller” of firearms, and the Federal Trade Commission’s ban on noncompete clauses are just a few of the Biden regulations in abeyance while judges decide their fates. Normally, a new rule would have to be promulgated to repeal and/or replace an old one, a laborious, time-consuming process. Yet with these regulations, all the Trump administration would have to do to make them disappear is accept decisions striking them down. The courts would be ruling against Biden, but it’s Trump who would benefit.

Given this possible outcome, perhaps the Left will evince a newfound appreciation for Loper Bright Enterprises v. Raimondo, the Supreme Court opinion from June that sharply limited the ability of government agencies to take steps that aren’t explicitly authorized by statutory language, especially on what the justices have dubbed “major questions.” In a sign of the first as tragedy, then as farce quality that seems destined to mark the Resistance 2.0, progressive commentators have begun extolling the virtues of states’ rights and federalism. Just as they did last time. They might even mean it this time.

Trump’s constitutional authority to execute and enforce federal law is another means by which he can influence the legal system, and one more path to conflict with his foes. Personnel is policy, and though his nomination of former Rep. Matt Gaetz as attorney general predictably went down in flames, he quickly named former Florida Attorney General Pam Bondi, a longtime loyalist, to replace him. He also tapped Todd Blanche and Emil Bove, two of his defense attorneys, for the second and third positions at the Department of Justice, and John Sauer, who argued the presidential immunity case at the Supreme Court, as solicitor general. Trump has also chosen Kash Patel, one of his fiercest defenders, to be FBI director. These selections are in keeping with Trump’s oft-stated desire to overhaul the DOJ, an agency that has long infuriated him and that he has excoriated as “corrupt and discredited.” Patel, like Trump, has vowed retribution against Trump’s enemies, such as special counsel Jack Smith and members of the House Jan. 6 committee such as former Rep. Liz Cheney. The Washington Post claimed Trump intends to fire Smith’s entire team, including nonpolitical DOJ employees. So fearful are some of Trump’s critics about what he could do that they are urging career DOJ staff to stay and not bolt for the exits. 

With the DOJ at his disposal, Trump would be able to affect the law in ways large and small. A Trump DOJ is expected to lessen oversight considerably of police departments found to have violated civil rights. Unlike his predecessor, Trump is unlikely to investigate parents who protest school boards for including gender identity and critical race theory in their children’s curricula or arrest physicians for exposing hospitals for dubious practices in treating transgender youth. When the party occupying the White House changes, so does the government’s position in some cases before the Supreme Court. Trump is anticipated to continue that pattern in two of the biggest cases the justices have heard this term, the challenges to Biden’s rule outlawing “ghost guns” and to Tennessee’s law banning so-called gender-affirming care for minors. Maybe most important of all is that as president, Trump will once again have the power of the pardon, something he reiterated on his Meet the Press appearance that he intends to use on behalf of many, if not all, the Jan. 6 rioters as early as his first day in office. 

On that note, perhaps the only way the past won’t be prologue in Trump’s second term when it comes to his interactions with the law will be in the absence of the lawfare perpetrated by the Resistance that marked his Mar-a-Lagonian exile. The federal Jan. 6 and classified documents cases no longer exist, both now having been dismissed. Juan Merchan, the judge overseeing Trump’s New York hush money trial, has postponed sentencing several times while deciding whether to dismiss the indictment, with no opposition from Manhattan District Attorney Alvin Bragg. If sentencing ever does occur, it won’t be until after Trump’s second term ends. As for the Georgia election interference case, the appellate court deciding whether Fulton County District Attorney Fani Willis should be removed has placed it in an obscure purgatory no one quite understands. Trump still faces a barrage of civil litigation relating to the events of Jan. 6 and continuing appeals in E. Jean Carroll’s defamation suit and his New York business fraud case. But civil suits simply don’t carry the weight of criminal indictments. The goal of this lawfare was to put Trump in prison or, failing that, at least keep him out of the White House. Instead, thanks at least in part to the indispensable assistance of the “legal resistance,” in less than two months, he will return to it in triumph, more powerful and popular than ever. 

Donald Trump left the presidency in 2021 after four years during which he wielded a potent, nearly unyielding influence on the courts that reshaped the federal judiciary. The subsequent four years, when he was out of office and thus the subject, not the shaper, of the law, had no less a profound impact on the legal and political systems of the U.S. This interregnum saw the Supreme Court majority he forged overturn Roe v. Wade, expand gun rights, strike a decisive blow to the administrative state, and outlaw affirmative action, while Trump himself became the first president to face criminal charges as well as the first to have his eligibility contested under Section 3 of the 14th Amendment. 

As a result, the Supreme Court delivered two landmark rulings in 2024, one rejecting the effort to disqualify him and setting the parameters for applying Section 3 to federal office, the other establishing for the first time that a president is immune from prosecution for the exercise of his constitutional powers, neither of which would have been imaginable five years ago. Whatever the next four years hold, we can be confident that when it comes to the law, they shall prove as momentous as the previous eight. 

Varad Mehta is a writer and historian. He lives in the Philadelphia area. Find him on X @varadmehta.