There are no Supreme Court vacancies, but some judges are acting like there might be
One judge appears to have dropped his long-standing support for birthright citizenship. Another wrote that the federal judiciary should not demand President Donald Trump’s “homework.” A third opened a recent dissent with a crude term for male genitalia.
As speculation swirls about a potential Supreme Court vacancy, a growing number of firebrand conservative judges are making themselves hard to ignore. Even without firm signs of an imminent opening at the high court, many lawyers consider the rise in flashy opinions to be a form of auditioning for Trump, known for his appreciation of loyalty and grandiose style.
“Trump, and the people around Trump, are going to try to look for people that they have more confidence in even than the previous set of nominees, and that is going to require some kind of further signals of loyalty to the agenda,” said Daniel Epps, a law professor at Washington University who closely follows the Supreme Court. “That just increases the incentives to audition as much as possible.”
Justice Samuel A. Alito Jr., 76, is widely seen as the justice most likely to step down after this Supreme Court term ends in about a month. Observers point to Alito’s age and the release of his first book as possible reasons the justice might soon retire. The stalwart conservative also might want to step down before the midterm elections in November, they say, so a Trump-appointed successor could be confirmed before Democrats potentially gain seats in the Senate.
Several recent reports have suggested that Alito has no plans to retire. But Republican leaders in the Senate say they are ready to push through a nomination if Alito does make an exit, with some floating Republican Sens. Ted Cruz (Texas) and Mike Lee (Utah) as potential candidates.
Against this backdrop, a number of fiercely conservative appeals court judges have begun making a splash through their opinions, as well their statements off the bench.
In March, Lawrence VanDyke, one of 13 Republican-nominated judges on the U.S. Court of Appeals for the 9th Circuit, opened a dissent with the line: “This is a case about swinging d- - -s.” The case concerned a female-only nude spa in the Seattle area whose owners refused service to transgender women with male genitalia.
A trans woman sued, alleging discrimination under Washington state’s discrimination laws, while the spa countered that it should be exempt because of the owners’ religious beliefs. A 9th Circuit panel sided with the transgender customer, and VanDyke’s dissent came when the full appeals court declined to reconsider the case.
“You may think that swinging d- - -s shouldn’t appear in a judicial opinion. You’re not wrong,” VanDyke wrote. “But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa—some as young as 13—to be visually assaulted by the real thing.”
VanDyke’s opinion drew sharp rebukes from his appeals court colleagues, with one calling it “crude and vitriolic language.” But the dissent also generated buzz and debate among both liberals and conservatives. Some said it was an effective, even “postmodern,” way to confront the issue. Others thought VanDyke was trying to get attention from the White House.
“One might wonder … whether Judge VanDyke is ‘auditioning’ for a Supreme Court appointment, and thinks that a display of willingness to break from judicial norms is just the way to recommend himself to a norm-breaking President,” wrote Adrian Vermeule, a conservative Harvard Law School professor, in a newsletter after the opinion’s release.
VanDyke had also made waves for filing a video-recorded dissent in a case regarding a California ban on gun magazines that hold more than 10 rounds of ammunition. (The Supreme Court is considering whether to take up that case.) VanDyke recorded the opinion with a Kalashnikov assault rifle mounted behind him and later walked viewers through the mechanics of handguns.
VanDyke did not respond to a request for comment.
In an interview with The Washington Post, California Attorney General Rob Bonta (D)—a party in the gun case—pointed to the dissent as a prime example of judicial auditioning.
“That was unique. That was unprecedented. I had never seen an opinion on video where an individual is handling a weapon in that way,” Bonta said. “Anytime there’s anything besides judges just doing their job and looking at the facts and looking at the law and calling it like they see it … that’s a problem.”
Experts point to several possible reasons that judges are writing more colorful opinions, beyond directly seeking a Supreme Court seat. In the age of social media, dissents like VanDyke’s can easily go viral, allowing judges to promote themselves and push their views about the law.
“I think it’s hard to disaggregate auditioning from trying to make a name for yourself,” said Ilya Shapiro, a senior fellow and director of constitutional studies at the Manhattan Institute, a conservative think tank. But, he added, “I’m sure they’d all love to be on the Supreme Court.”
A change to Senate rules in 2017 also gave judges a bigger incentive to audition in a starkly partisan way. That year, as Democrats blocked the nomination of Neil M. Gorsuch, Republicans dispensed with the filibuster for Supreme Court nominees, meaning they could be confirmed by a simple majority instead of needing a two-thirds vote.
So a nominee no longer had to attract at least some support from the opposition party. “That significantly changes the incentives for people, and judges in particular, who are trying to position themselves to be nominees,” Epps said.
Before the 2017 rules change, Supreme Court nominees walked a tightrope, he said, seeking to write opinions that grabbed supporters’ attention without overly offending critics. When Chief Justice John G. Roberts Jr. was nominated by President George W. Bush in 2005, “he mostly played his cards close to his vest, and that was a winning strategy,” Epps said.
Now, judicial nominees need only sway the president’s base, experts say.
James C. Ho, a judge on the U.S. Appeals Court for the 5th Circuit, one of the country’s most conservative appeals courts, is frequently listed as a Supreme Court candidate and regular auditioner. A former clerk for Justice Clarence Thomas, Ho was nominated by Trump to the appeals court in 2017. Since then, Ho has been recognized for his provocative opinions, referring to abortion as a “moral tragedy” and quoting from the 2006 Will Ferrell comedy, Talladega Nights: The Ballad of Ricky Bobby.
Speculation about Ho’s auditioning intensified when, after Trump was reelected in 2024, the judge appeared to shift his position on birthright citizenship to more closely align with Trump’s view that illegal immigration had morphed into an “invasion” and should be limited.
In 2006, Ho had forcefully defended the Constitution’s grant of birthright citizenship to the children of a “vast majority” of lawful and unlawful immigrants, reinforcing those points in a 2011 Wall Street Journal op-ed.
But in a 2024 interview with South Texas College of Law Houston professor Josh Blackman, Ho embraced the idea that migrants were invading the United States and their children were not entitled to birthright citizenship. (Earlier that year, he had written an opinion agreeing with Texas Gov. Greg Abbott’s characterization that illegal immigration at the U.S.-Mexico border had amounted to an “invasion.”)
“No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship,” Ho, an immigrant from Taiwan, said in comments that were widely seen as a reversal.
But Ho has also expressed reservations about being nominated to the Supreme Court.
In statements published in March in the Journal of Law & Civil Governance at Texas A&M, Ho noted that his being on the high court could present conflict-of-interest issues. His wife, Allyson N. Ho, is the co-chair of the appellate and constitutional law practice at Gibson Dunn, a major nationwide law firm that frequently represents clients before the Supreme Court.
“I brought this up when folks called me about the list in 2020,” Ho said. “I didn’t want to deceive anyone. But I was told it wasn’t a problem. There was no vacancy. The only question was whether I was willing to be included on a list.” Ho did not elaborate on whether he was willing to be included.
Judge Andrew Oldham, also nominated to the 5th Circuit by Trump in 2018, has drawn attention for stark conservative opinions that sometimes wade into partisan politics. In one opinion, Oldham, a former Alito clerk, obliquely referenced theories that Joe Biden was mentally unfit to issue a flurry of pardons in the final days of his presidency.
Months later, Oldham dissented from a decision invalidating Trump’s use of the 1798 Alien Enemies Act to send Venezuelan immigrants whom the president accused of being gang members to prison in El Salvador.
“We don’t get to demand the President’s homework,” Oldham wrote, arguing that courts should not be able to review Trump’s declaration of an invasion.
Oldham did not respond to a request for comment.
It is not always obvious when a judge is auditioning for the Supreme Court and when he is simply staking out a judicial position, said Mike Fragoso, an attorney at Torridon Law who served as chief counsel to then-Senate Majority Leader Mitch McConnell (R-Kentucky).
But in the Trump era, writing buzzy opinions can’t hurt a judge’s Supreme Court prospects, Fragoso said. When Gorsuch was an appeals court judge in 2016, for example, he wrote both the majority opinion and separate concurring opinion in a case involving a federal agency power.
Judges typically do not write separate opinions agreeing with their own rulings. Gorsuch used the maneuver to blast what’s known as the Chevron doctrine, viewed by many conservatives as an instrument of regulatory overreach. (Once on the Supreme Court, Gorsuch joined a 6-3 majority to overturn the doctrine in 2024.)
That positioned him well in January 2017, when a newly elected Trump was choosing a successor to Justice Antonin Scalia.
“I think that’s generally thought to be one of the things that put him over the top,” said Fragoso, who worked as an attorney on the Senate Judiciary Committee during Gorsuch’s confirmation hearings. “Ever since then, people have understood if you want to get the White House’s attention, you should get the White House attention.”
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