WASHINGTON: President-elect Donald Trump, who moved the US Supreme Court dramatically rightward in his first term, may get a chance to rejuvenate its 6-3 conservative majority by replacing some or all of its three most senior conservatives with younger jurists – and perhaps even expand it if a liberal justice leaves.
Justices Clarence Thomas, 76, and Samuel Alito, 74, as well as Chief Justice John Roberts, who turns 70 a week after Trump is due to be inaugurated on Jan. 20, all were appointed by Republican presidents to their lifetime posts on the court. All three could decide to retire with the Republican Trump succeeding Democratic President Joe Biden and with Republicans taking control of the Senate, according to legal experts.
“I think it likely that one or both of Justices Thomas and Alito step down in the next presidential term, and perhaps the chief justice, too,” Cornell Law School professor Gautam Hans said. “There are multiple federal judges that were confirmed under President Trump that I would anticipate being on a short list to replace them.”
And Trump would be able to expand the court’s conservative majority to 7-2 if one of the three liberal justices steps down during his presidency. The oldest of the three, Sonia Sotomayor, is 70 and has type 1 diabetes.
Under the US Constitution, a president nominates members of the federal judiciary who must then be confirmed by the Senate. Senate rules require only a simple majority for confirming a justice.
Trump defeated Democratic US Vice President Kamala Harris in Tuesday’s US election while Republicans seized control of the Senate from the Democrats.
He came into the presidency in 2017 with the court at a 4-4 ideological deadlock following the 2016 death of conservative Justice Antonin Scalia. Trump was able to appoint three conservative justices – Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 – and forge the current 6-3 ideological breakdown.
Since Barrett replaced the late liberal Justice Ruth Bader Ginsburg, the court has moved American law to the right, with rulings rolling back abortion rights, widening gun rights, rejecting race-conscious collegiate admissions policies and constraining the power of federal regulatory agencies.
Liberals on the sidelines
During his presidency, Biden appointed a single justice – Ketanji Brown Jackson in 2022 – but her addition did not change the court’s ideological composition because her predecessor Stephen Breyer was a fellow liberal.
In recent years, the court’s three liberal justices have often been relegated to a dissenting minority in major rulings. With its current ideological breakdown, the liberals need to be joined by at least two conservative colleagues to be in the majority in any ruling.
University of Illinois Chicago law professor Steve Schwinn said retirement decisions by Thomas, Alito and Roberts likely would be driven by whether they see their judicial legacies as complete or believe that more remains to be done.
“Thomas has already solidified his legacy, and I imagine he’d be happy with a replacement continuing it,” Schwinn said. “I’m less sure about Alito, and less sure still about Roberts. They may feel like they still have work to do, and that Trump’s presidency will embolden them to do it.”
Harvard Law School professor Mark Tushnet said the retirement of any of those three likely would prompt Trump to appoint a younger judge with a conservative track record who is committed to a judicial philosophy called originalism under which the Constitution and statutes are interpreted as written in accordance with their original meaning.
“In the short run, that’s likely to have relatively little effect, with one conservative originalist replacing another,” Tushnet said. “But, of course, the new appointee or appointees will be there for a long time, consolidating a conservative majority that will be in place when or if a Democrat becomes president and advances a liberal policy agenda.”
At the time of their confirmation, Gorsuch was 49, Kavanaugh 53 and Barrett 48, meaning they could serve for decades.
Senator Chuck Grassley may be poised to return as chair of the Senate Judiciary Committee, which vets judicial nominations, when Republicans take control of the chamber.
A spokesperson for Grassley said on Wednesday that the senator “looks forward to working with President Trump to confirm highly qualified, constitutionally sound judges to the federal judiciary.”
Trump and Senate Republicans not only have the opportunity to confirm new Supreme Court justices but also continue their efforts to reshape the rest of the federal judiciary with conservative appointees. Trump won confirmation of 234 judicial nominees in his first four years in office, the second most appointments by any president in a single term.
Sotomayor’s decision
Sotomayor has faced calls from some on the political left to retire since 2022, when Democrats won control of the Senate that they are set to relinquish in January. Sotomayor has given no indication that she is considering it.
“There’s no realistic possibility that Justice Sotomayor will retire immediately and have a replacement confirmed before Jan. 20,” Tushnet said. “I suppose that some hard-line progressive advocacy groups might propose that, but she won’t do it, and the Democratic majority in the Senate wouldn’t go along, anyway.”
Some on the left had urged Ginsburg to retire during Democrat Barack Obama’s 2009-2017 presidency to ensure that a Republican president did not get a chance to replace the liberal icon with a conservative, which ultimately happened when she died in 2020 at age 87.
“I think there will be calls for Justice Sotomayor to step down to allow for a quick confirmation of a successor while President Biden is still in office, but I would be surprised if those succeeded,” Hans said.
“The Democrats have not had great success in facilitating strategic retirements of justices they confirmed, with Justice Ginsburg as the most prominent example. If Justice Sotomayor were inclined to have stepped down strategically I would have expected her to do so long before now,” Hans added.
