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Donald Trump could entrench a MAGA Supreme Court for a generation

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WHEN HE RAN for president in 2016, Donald Trump released two lists of potential justices to assure Republicans he would choose conservatives to fill Supreme Court vacancies. He issued a third list in 2017 and final roster in 2020—days before Ruth Bader Ginsburg’s death allowed him to cement a 6-3 conservative majority on America’s highest court.

Mr Trump recently said his campaign has turned listless because he “no longer need[s]” to shore up his conservative bona fides. Indeed, thanks to Mr Trump the court has overturned Roe v Wade, bolstered gun rights, hobbled administrative agencies, battered the wall separating church from state and all but immunised presidents from criminal prosecution. With large majorities deploring the end of Roe and the court’s popularity in the dumps, announcing plans to push the court still further to the right may not be an enticement to swing voters. Still, if he is re-elected Mr Trump may get to appoint at least two more justices, because both Justice Clarence Thomas and Justice Samuel Alito might decide to go on his watch to keep the court conservative. That would take him to a total of five justices, a feat only a handful of presidents have managed.

Who would they be? The Centre for Judicial Renewal, a wing of the American Family Association, a religious-right organisation, trumpets five candidates and warns Mr Trump off four judges he appointed to circuit courts because, among other things, one (Amul Tharpar) used a transgender litigant’s preferred pronouns and another (Neomi Rao) converted to Judaism. One of its “green rating” picks, chosen for his “biblical worldview” (one of its ten attributes of a “constitutional judge”) is James Ho, who was tapped by Mr Trump in 2017 for a seat on an appellate court—and who appeared on his 2020 Supreme Court list.

Judge Ho is the most combative jurist on the Fifth Circuit Court of Appeals, America’s most conservative intermediate court. Even on a tribunal that forces right-wing causes backed by dubious legal principles onto the Supreme Court’s docket, Judge Ho distinguishes himself.

In June, writing for a unanimous Supreme Court, Justice Brett Kavanaugh laid out an error in a ruling by Judge Ho and two colleagues that had rolled back access to mifepristone, an abortion medication. The pro-life doctors challenging the Food and Drug Administration’s regulations, Justice Kavanaugh explained, lacked the right to sue because the mifepristone rules had caused them no harm. No mention was made of Judge Ho’s peculiar argument that doctors who “delight in working with their unborn patients” can challenge rules governing abortion pills because they “experience an aesthetic injury” when fetuses are aborted.

The contention that doctors have standing to oppose a medication because it strips them of “a source of profound joy” is not Judge Ho’s only injection of far-fetched positions—and personal scruples—into his jurisprudence. Early in his tenure he wrote of the “moral tragedy of abortion” in a case involving a Texan law requiring the burial of fetal remains. As solicitor-general of Texas in 2009, he wrote a brief describing the right to bear arms as “the ultimate guarantor of all the other liberties enjoyed by Americans”. Two years ago, a covid public-health measure in Mississippi challenged by Golden Glow, a tanning salon, spurred Judge Ho to call for a return to Lochner v New York—the decision that struck down decades of worker protections until the Supreme Court abandoned it in 1937.

Judge Ho also regularly inserts himself into culture-war battles, boycotting graduates of Yale and Columbia for clerkships and lashing out at critics. This outspokenness beyond his chambers is in stark contrast to the more reserved man he could succeed under a second Trump presidency, Justice Thomas. At 76, he is the oldest, and longest-serving, sitting justice. But like Justice Thomas, Judge Ho, aged 51, purports to interpret the constitution in light of its original meaning. Both men seem to have idiosyncratic impressions of that meaning, often writing only for themselves to articulate a position none of their fellow jurists are willing to defend. The ties are intimate: Justice Thomas hired Mr Ho as a law clerk in 2005 and, 13 years later, administered his oath of office in the personal library of Harlan Crow, the right-wing billionaire from whom Justice Thomas has accepted luxury trips, raising  ethics concerns.

Judge Ho has a colleague on the Fifth Circuit who could also find himself elevated if the justice he clerked for in 2008—Samuel Alito—retires. Andrew Oldham, aged 46, may lack Judge Ho’s bombast, but his views on the law are just as radical. During his confirmation hearing in 2018, Judge Oldham declined to say whether Brown v Board of Education, a ruling that declared segregation in schools unconstitutional, was correctly decided. He has pursued a deregulatory agenda on the Fifth Circuit that has, at times, found friendly majorities at the Supreme Court. On October 25th, he wrote for Judge Ho and another short-list pick of the Centre for Judicial Renewal, Judge Kyle Duncan, that counting mail-in ballots postmarked by election day but received a few days later is illegal—despite the long-standing practice being adopted in nearly half of America’s states.

If Republicans take control of the White House and Senate in January, little will stand in the way of Mr Trump seating the likes of Judges Ho and Oldham. Their prospects may turn on the Senate margin; with at least a 52-48 gap, Mr Trump could afford to lose Lisa Murkowski and Susan Collins, two moderate Republicans, and still eke out enough years to entrench a MAGA Supreme Court for a generation.

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Economics

What role might Trump give Robert F. Kennedy junior?

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AS DONALD Trump returns to power, several colourful characters surround him. One is Elon Musk. Another is Robert F. Kennedy junior, a vaccine-sceptic, conspiracy-theorist and excommunicated member of the Kennedy clan, who says he has “so many skeletons in my closet that if they could vote, I could be king of the world”.

Mr Kennedy joined the Trump campaign in August, after dropping out as an independent candidate. Since then Mr Trump has promised to let him “go wild” on health, food and medicine. In his victory speech on November 6th he singled Mr Kennedy out as the man who would help “Make America Healthy Again”. Although Mr Trump has been vague about what role he has in mind, Mr Kennedy claims he was promised “control of the public health agencies”.

This possibility has spooked those working in related fields. Mr Kennedy’s history of repeating debunked health claims, most damningly about linking childhood vaccines to autism, has been particularly damaging in a country where science has become deeply politicised. Even Mr Trump’s former surgeon-general has warned against appointing him to a senior post.

In a sign of what might lie ahead, Mr Kennedy warned on October 25th, on X, that the Food and Drug Administration’s “war on public health is about to end”, accusing it of suppressing psychedelics, stem cells, raw milk, hydroxychloroquine, sunshine and “anything else that advances human health and can’t be patented by Pharma”. On November 2nd he posted that the Trump White House would on its first day “advise all US water systems to remove fluoride from public water”.

What job, if any, might Mr Trump give him? That of secretary of health or FDA chief would require Senate confirmation, a spectacle Mr Trump may want to avoid. More likely might be an informal “health tsar” role. This could leave Mr Kennedy stuck in the White House basement with a meaningless title, or at the heart of power with the president’s ear. Much will depend on whether his boss gets sick of him.

Stay on top of American politics with The US in brief, our daily newsletter with fast analysis of the most important electoral stories, and Checks and Balance, a weekly note from our Lexington columnist that examines the state of American democracy and the issues that matter to voters.

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Economics

What a second Trump presidency will bring

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This is the introduction to The Economist this week, a free weekly newsletter that includes a note from our editor-in-chief, Zanny Minton Beddoes.

Zanny Minton Beddoes, our editor-in-chief, writes about this week’s cover package

The world has just witnessed a historic turn. Donald Trump’s election as America’s 47th president was not a fluke: his victory was decisive. By securing more than 70m votes, he has won the popular vote for the first time in three attempts. The Republican Party now runs the Senate and is likely, within days, to secure control of the House. Add that the Supreme Court will be firmly entrenched with MAGA values for a generation. All this constitutes a stunning comeback and provides a powerful mandate for Mr Trump; in our cover leader we call him the most consequential American president since Franklin D. Roosevelt.

Our weekly edition considers what a second Trump presidency means. If Mr Trump has wrecked the old order, what will take its place? Will the return of Trumponomics spark a global trade war? How will Mr Trump handle the conflicts in Ukraine and the Middle East? His sweeping victory could set the tone for fellow nationalist populists such as Marine Le Pen, who hopes to secure France’s presidency in 2027. Mr Trump was too easily dismissed as an aberration in his first term. Not now. He has defined a new political era, for America and the world.

Subscribers can now sign up to participate in our live digital event on Friday November 8th, where our editors will discuss the election’s aftermath and what comes next. I also recommend the US in brief, our daily newsletter devoted to the most important matters in American politics.

Wherever you live, Mr Trump’s presidency will affect you. Over the next four years, we will report on and analyse the effects of the second Trump presidency on policy, business, economics and more—in America and around the world.

I invite you to be a part of this. If you already subscribe to The Economist, thank you.

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Economics

Ballot-measure results reveal the power of state policy

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WIPING AWAY tears, Lauren Brenzel, who led Florida’s campaign to enshrine a constitutional right to an abortion, claimed one victory: “A majority of Floridians…just voted to end Florida’s abortion ban.” Though 57% of Floridians supported the amendment, it fell short of the 60% threshold required in the state. Florida’s current law banning abortion after the sixth week of pregnancy, with limited exceptions, will stand. The proposed amendment would have made abortion accessible until about 24 weeks from conception. The loss will affect 4m women in Florida and millions more across America’s south-east, where the procedure is highly restricted.

Nine other states voted on abortion measures on November 5th. South Dakotans rejected even a limited loosening of their strict ban. Nebraskans enshrined a 12-week ban into their constitution. Some states voted the other way: a slim majority of Missourians threw out the state’s complete prohibition. In Arizona, Montana and Nevada amendments passed easily. At an election-night party in Phoenix, Laura Dent, campaign manager of the pro-abortion-rights side, lamented the fragmented policy landscape that resulted in victory in Arizona and defeat in Florida. The failures mark the first times abortion-rights supporters have lost a state ballot campaign since the Supreme Court overturned a national right to the procedure in 2022.

Abortion amendments were among the most prominent of nearly 150 initiatives on America’s ballots on November 5th. Such measures allow voters to decide their own policies on everything from criminal justice to climate policy. About $1.2bn was spent campaigning for and against them. Some states have yet to finish counting votes. Abortion aside, the results so far suggest that Americans were aligned on several issues. For the most part, voters repudiated ranked-choice voting (RCV), barred non-citizens from voting and strengthened criminal penalties.

Seven states and Washington, DC, voted on whether to adopt RCV or open primaries, in which all candidates are listed on one ballot regardless of party affiliation. Campaigners hoped such constitutional amendments could help boost moderate candidates over more extreme ones, despite emerging evidence that RCV’s effects on partisanship are minimal. The nation’s capital was the only place that chose to adopt such a system, while Missourians voted to pre-emptively reject the practice. At the time of writing, a measure to repeal Alaska’s relatively new RCV-and-open primaries combo was narrowly leading.

Each of the eight (Republican-leaning) states that weighed whether to bar non-citizens from voting endorsed the idea. These results are a political signal, not a policy change. Before the poll, Donald Trump and Republicans began to question the results of the election by arguing, incorrectly, that illegal immigrants were voting en masse. In reality, the practice is already unlawful except in very few local jurisdictions. A more consequential vote came from Ohioans, who decided not to create an independent redistricting commission for congressional and legislative races. It is the third time in a decade that voters there have tried and failed to stamp out rampant partisan gerrymandering.

Californians will be counting votes for some time, but a controversial measure to strengthen penalties for some thefts and drug crimes seems to have passed with widespread support. In Colorado voters opted to increase funding for police, deny bail for people facing first-degree murder charges and delay parole for violent offenders. These results are part of a broader shift away from milder criminal-justice policies in Democratic states. Arizonans voted to allow police to arrest people for crossing the border illegally. The measure was modelled on a similar law in Texas which is tied up in the courts.

All these votes together offer a mishmash of policies in states that can differ greatly from one another. But the results still provide lessons. The biggest? Americans fed up with what is happening in Washington should look to the states: that’s where a lot of the action is.

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