Outside the Beltway

Auditioning for the Supreme Court?

We've created some perverse incentives.

James Joyner · Sunday, May 31, 2026 · 4 comments

WaPo (“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.”

I’m old enough to remember when the incentives pointed in the other direction. Presidents, especially Republican Presidents, looked for Supreme Court nominees with very little in the way of a “paper trail,” so as to make it harder for the American Bar Association (whose ratings of nominees then carried great weight) and Democrats on the Senate Judiciary Committee couldn’t find ammunition to justify sinking the nomination. I believe this was an outgrowth of the failed nomination of Robert Bork, but I could be mistaken.

So, what happened?

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.

The road to abolishing the filibuster for nominees was long, and the end arguably overdue. But, as with the increase in noncompetitive House and Senate seats, the natural outcome is the emergence of more extreme candidates.

In fairness, this doesn’t necessarily mean that judges are writing more extreme opinions in hopes of securing a promotion:

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.”

That the “personal brand” phenomenon has reached the judiciary, while decidedly less than ideal, was likely inevitable.