We are confronted, once again, with the prospect of a Donald Trump presidency.
Trump won handily, all things considered, and there was broad rightward movement in the electorate across much of the country — including in Democratic strongholds.
The key difference between Trump taking office in 2017 and 2025 is that the wobbly guardrails that held back the first Trump administration in its most overreaching moments are either gone or damaged and less likely to hold now.
A more extreme Trump administration, empowered by a larger win, that followed a campaign that vilified the vulnerable and promised retribution, operating in a system where Trump has been told he has criminal immunity for most official acts and where he already appointed more than 200 judges across the country paints a stark, dark picture.
Complicating that, though, is the picture of ballot measures protecting abortion passing in seven states (and securing majority support in an eighth state), two Black women being elected to the Senate, the first out transgender person being elected to Congress, and many more stories of hope, promise, and protection. They are the reminder, the pushback, the future.
But, in the now, we will have to face the reality of the fallout of Trump’s win within the areas that I cover here at Law Dork — for reproductive rights, for transgender people and other LGBTQ rights, for criminal justice, for voting rights and other democracy questions, for immigration, and for so much more.
Trump’s win, first, means that he will not face criminal liability — at least on a federal level — for his role in January 6. The Justice Department, NBC reported Wednesday, is already figuring out how to “wind down” the federal cases pending against him before he re-takes office. This is a failing of our system — that should have been taken care of with impeachment conviction back in 2021 — and the most dramatic example of the guardrails not holding even in the aftermath of Trump’s first term.
Aside from Trump himself, Trump’s re-election, along with Republicans taking control of the Senate, will mean that Republicans will control the U.S. Supreme Court for the foreseeable future. If Justices Clarence Thomas and Sam Alito retire and Trump appoints their replacements, moreover, Trump will have appointed a majority of the court — the most since Franklin D. Roosevelt. I’ve regularly said that we could have done a lot worse than the three appointees we got out of Trump’s first term; in a second term, we very well could find out.
Relatedly, the Republicans’ Senate control will mean that Trump will get his cabinet, as he wants it, and that the lower-level people implementing changes will be who he wants. Trump is not a “details man,” and the biggest question for what happens in the coming years will be who he puts where. The less competent the people, the more likely they are to just not understand how to pull off the changes they are seeking. But, some changes — even dramatic plans — will be implemented, and the courts, already significantly infused with Trump appointees, are going to be less likely to stop him this time around.
This is the contingency planning that the Chief Justice John Roberts and the Supreme Court’s conservative majority laid out in their actions before the court’s summer recess this year and that extremists on lower courts and far-right lawyers have picked up and run with in the months since.
As I wrote in July, “If Trump wins, Roberts has set up the court to be pliant appeasers of Trump’s planned right-wing authoritarianism. Sure, there will be minor pushback, but if Trump v. Hawaii was what we got out of the court during a first-term Trump administration, imagine what this more extreme court would OK in a second term.“
Now, again, we will see what that looks like. One of the first legal effects of Trump’s win will be the potential for the federal government changing positions in cases currently before the Supreme Court. Then, there are petitions seeking review. Finally, there are new policies — and litigation — that the Justice Department in a second Trump administration could seek to take. Trump’s pick for attorney general will be a key first sign of the direction this second Trump administration will go on the legal front.
The next part of that contingency planning coming to fruition in a second Trump administration will be the federal appeals courts. The U.S. Court of Appeals for the Fifth Circuit will become less of an outlier. The Third, Sixth, Seventh, and Eleventh circuits — already controlled by Republican appointees — will likely get more extreme as Trump replaces older, retiring George H.W. Bush and George W. Bush appointees with appointees 30 years younger and far more extreme. Even the Ninth Circuit — once seen as the left-wing version of today’s Fifth Circuit — could become more and more of a swing court.
To the extent that far-right legal groups like America First Legal and Alliance Defending Freedom don’t, in practice, become a part of the administration through their leaders joining the administration, expect them to bring even more extreme litigation in an effort to take advantage of this moment.
These are the contingencies I have written about for the past several months. Now the path — on that front — has been chosen.
It’s a lot to take in. There will be very real consequences of this election, and it will not be easy — and, of course, Trump could even take more extreme anti-democratic, authoritarian steps that would require further responses.
The question for each of us now — or, at least, soon — is: What do we do with that?
In this moment, like we all do, I come to it through my experiences. And, despite being a white, cisgender man who lives in a city and lives a pretty blessed life, I have been forced to confront difficulties and failings that have both humbled me and opened my eyes and heart to more. I also, through my work and curiosity, have learned much — directly and in their writings and other works — from queer people and others who have come before me and who are following me.
I am channelling those lessons today, that humility and that compassion — but also that power.
We need not give up. We must support one another. We must protect vulnerable people and communities. We should, yes, remember to breathe — and drink water. We can point to successes and use our power where we have it — including at the state and local level. We should learn from our losses and do what is needed to change our future.
It is a lot.
In Tony Kushner’s epic play chronicling New Yorkers in the midst of the AIDS epidemic in the mid-1980s, Angels in America, when the Angel arrives, the attention — even from me — is on that opening line: “The Great Work Begins.”
If you are sitting in pain or fear today, take heart in the initial response of Prior Walter: “Go away.”
When the Angel presses ahead, Prior continues to fight: “I’m not prepared, for anything ….” Recounting his experience with the Angel, Prior tells a friend, “It’s 1986 and there’s a plague, half my friends are dead and I’m only thirty-one, and every goddamn morning I wake up … and it takes me long minutes to remember … that this is real, it isn’t just an impossible, terrible dream, so maybe yes I’m flipping out.”
But, the fight — Prior’s work, America’s work — continued. And, by the end of Kushner’s “Gay Fantasia on National Themes” in 1990, Prior closed the story. Addressing the audience in a speech that always has reminded me of Puck’s final speech in A Midsummer Night’s Dream, Prior concludes:
Bye now.
You are fabulous creatures, each and every one.
And I bless you: More life.
The Great Work Begins.
One of the lessons that I have taken from that is that fear — even justified fear — need not be the end of the story. It might be the beginning of a new story. There will be pain, difficulty, and even death. The harm will be real. But the work can be worth it, and can lead to change.
In 2011, I had the chance to talk with Larry Kramer, a co-founder of Gay Men’s Health Crisis (GMHC) and AIDS Coalition to Unleash Power (ACT UP), and I asked him, “What’s the long view?”
Kramer, known for his angry missives, responded concisely.
“Take it a day at a time.”
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