No seat on the Supreme Court sits empty, but a growing roster of conservative federal appeals judges appears to be writing opinions crafted less for the litigants in front of them than for an audience of one: President Donald Trump. With Justice Samuel A. Alito Jr., 76, widely expected to retire when the current term ends in roughly a month, the informal competition has grown impossible to ignore.
Legal scholars and former Senate aides now describe the trend openly. Judges on the 9th Circuit and the 5th Circuit are deploying vulgar language, recording video dissents, and staking out sharp ideological positions that track closely with the administration's priorities, all in opinions that, by design, travel far beyond the courtroom, as recently reported.
The question is not whether it is happening. The question is what it means for the Court, the confirmation process, and the quality of the law these judges are supposed to be writing right now.
Judge Lawrence VanDyke of the 9th U.S. Circuit Court of Appeals has become the most visible example. On March 12, 2026, VanDyke opened a dissent in Olympus Spa v. Armstrong, a case involving a Korean women-only nude spa in Lynnwood, Washington, that refused to admit transgender women, with a line that would not survive a family newspaper's copy desk. The full court had declined to rehear a panel ruling against the spa, and VanDyke used his dissent to register his objection in terms other judges on his own circuit called "crude and vitriolic."
That was not VanDyke's first turn in the spotlight. Roughly a year earlier, he posted an 18-minute video dissent in Duncan v. Bonta, a Second Amendment challenge to California's ban on magazines holding more than 10 rounds. He recorded it in his chambers with a long gun mounted behind him and handled several firearms on camera to argue that magazines qualify as protected arms. California Attorney General Rob Bonta, a Democrat, called the video "unique" and "unprecedented." The Supreme Court is now weighing whether to take up the case.
Conservative Harvard Law School professor Adrian Vermeule reportedly wrote that VanDyke's opinion looked like an audition for a "norm-breaking" president. Whether or not VanDyke intended it that way, the perception alone tells you something about the incentive structure at work.
Judge James C. Ho of the 5th Circuit presents a different kind of case study. A former Clarence Thomas clerk frequently named on Supreme Court shortlists, Ho defended birthright citizenship for the children of immigrants in a 2011 Wall Street Journal op-ed. By 2024, in an interview with law professor Josh Blackman, Ho was arguing that the children of "invading aliens" were not entitled to the same protection, a position that aligned neatly with Trump's characterization of illegal immigration as an invasion.
The shift is worth examining on its own terms. Legal thinking evolves. But when a judge's published views migrate toward the sitting president's rhetoric on the most politically charged issue of the day, the timing invites scrutiny. Ho has acknowledged that his wife's appellate practice at Gibson Dunn could create conflicts if he were elevated, but that has not kept his name off the lists.
Trump's well-documented frustrations with some of his own prior Supreme Court appointees only raise the stakes for judges trying to signal that they will not drift once they reach the high court.
Then there is Judge Andrew Oldham, also on the 5th Circuit, who wrote a 130-page dissent last September in W.M.M. v. Trump. The case involved Trump's invocation of the 1798 Alien Enemies Act to deport accused Venezuelan gang members to a prison in El Salvador. Oldham argued that courts simply cannot review the president's use of that authority.
His line, "We don't get to demand the President's homework", is the kind of sentence that fits on a bumper sticker and in a Federalist Society keynote. A 130-page dissent is not casual work. It is a statement of judicial philosophy delivered at a length that demands attention from anyone assembling a shortlist.
The broader pattern is hard to miss. Three Trump-appointed appeals court judges, three high-profile opinions or dissents, each one landing squarely on an issue, transgender policy, gun rights, immigration enforcement, where the administration has staked out aggressive positions. With the Court's senior conservatives marking historic tenures, the next vacancy could reshape the bench for a generation.
What makes this moment different from earlier eras of judicial ambition? Daniel Epps, a law professor at Washington University, points to the 2017 Senate rule change that ended the filibuster for Supreme Court nominees. Before that shift, any nominee needed at least some bipartisan support to clear the chamber. That meant audition-style opinions could backfire, alienating the moderate senators whose votes a nominee would need.
Epps put it plainly:
"That significantly changes the incentives for people, and judges in particular, who are trying to position themselves to be nominees."
Under the old rules, a judge who wrote a deliberately provocative dissent risked looking too partisan for confirmation. Under the new rules, provocation carries almost no downside. A simple majority suffices, and Senate Republicans are already positioning to confirm Alito's successor before the November midterms, when their majority could shrink.
Mike Fragoso, former chief counsel to then-Senate Majority Leader Mitch McConnell, was even more direct: "writing buzzy opinions can't hurt a judge's Supreme Court prospects." That sentence should concern anyone who believes judicial opinions ought to be written for the parties and the law, not for political consumption.
Senate Republicans understand the calendar. If Alito steps down at the end of the current term, the confirmation window before November is narrow. Names already floated for the seat extend beyond the appellate bench to include Sens. Ted Cruz of Texas and Mike Lee of Utah, a reminder that the competition is not limited to judges writing flashy dissents.
Democrats, for their part, have been rallying donors and building opposition infrastructure in anticipation of exactly this scenario. The confirmation fight, whenever it arrives, will be brutal regardless of whom Trump selects.
But the pre-vacancy jockeying raises a distinct concern. When judges write opinions designed to go viral rather than to resolve the disputes before them, the litigants become props. The spa owner in Lynnwood, the gun owner challenging California's magazine ban, the deportee invoking due process, each of them deserves a judge focused on their case, not on a future job interview.
None of this means the underlying legal positions are wrong. There are strong originalist arguments for protecting Second Amendment rights, for enforcing immigration law aggressively, and for limiting judicial interference with executive authority. As Justice Gorsuch has noted, disagreements on the Court are supposed to be about reading the law, not partisan scorekeeping.
The problem is not the substance. It is the packaging. When a dissent opens with language designed to trend on social media, or when a judge records an 18-minute video with firearms as visual aids, the line between legal reasoning and political performance blurs. Conservatives who spent decades arguing that judges should be umpires, calling balls and strikes, not playing to the crowd, ought to be the first to notice when their own side's judges start mugging for the camera.
The 2017 filibuster change removed a structural guardrail. The result is a system where the loudest, most provocative voice on the appellate bench may have the clearest path to the Supreme Court. That is not a left-right problem. It is an institutional one.
Trump will make his pick, and he has every right to choose a justice who shares his constitutional philosophy. But the republic is better served when that pick is the sharpest legal mind on the bench, not the one who wrote the most memorable punchline.
