Former President Donald Trump’s return to the White House could give him even more influence over the Supreme Court, as the ex-president may be able to appoint multiple justices to the high court—and the Senate’s shift to GOP control ensures reforms backed by Democrats to check the Supreme Court’s conservative tilt won’t move forward.
Then-President Donald Trump shakes hands with Supreme Court Justice Brett Kavanaugh before his ... [+]
There are no vacancies on the Supreme Court right now, but Trump’s election has raised speculation that right-leaning Justices Samuel Alito and Clarence Thomas—the two oldest on the court, at age 74 and 76, respectively—could decide to retire while the White House and Senate are in conservative hands.
That would allow Trump to appoint their successors, which the Senate—which will have at least a 52-seat Republican majority—is all but certain to confirm, as the GOP’s majority means nominees could likely pass even if more moderate senators like Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, oppose them.
While those appointments wouldn’t change the court’s existing 6-3 conservative tilt, Trump is likely to appoint younger justices to the court who will be able to serve for decades, keeping those seats firmly in Republican hands for years to come.
Trump’s next nominees may be more willing to go along with his policies than the three he appointed during his first term, as The Washington Post reports Trump has privately complained about his first-term appointees being too “independent,” and has reportedly fallen out with the Federalist Society, which supplied Trump with suggestions of more traditional conservative judges during his first term.
Though Democrats have sought to combat the Supreme Court’s right-wing majority by pushing major reforms like imposing term limits, adding justices to the court or instituting a binding code of ethics, Republicans’ takeover of the Senate ensures that those proposals—which were already a longshot—are now even more certain to fail.
It’s still unclear if either Alito or Thomas actually will retire. While CNN reported in July that Alito has has “reflected in private about retirement,” there’s no indication yet of whether he actually would go through with it, and The New York Times reported in 1993 that Thomas, who was appointed to the court in 1991, once told a clerk he intended to stay on the bench until 2034. “The liberals made my life miserable for 43 years, and I'm going to make their lives miserable for 43 years,” the then-43-year-old justice explained. Anonymous allies of the justices similarly told NPR they were doubtful the two justices would step down. “What would he do, go home and fly flags with his wife at the beach?” one ally said about Alito, while Thomas’ friends and law clerks said the justice would view retiring as “caving into his critics” and being “driven off the court.”
While the most likely vacancies to pop up on the Supreme Court during Trump’s next term would be due to Thomas and/or Alito retiring, it’s of course possible there could be unforeseen circumstances like illness, death or just deciding to retire that could also require younger justices to be replaced. The third-oldest justice is left-leaning Sonia Sotomayor, 70, followed by right-leaning Chief Justice John Roberts, 69, and left-leaning Elena Kagan, 64. The other four justices—three Trump appointees and one Biden appointee—are in their 50s.
It’s still unclear who’s on Trump’s mind as a potential Supreme Court pick, as while the ex-president said during the campaign that he’d release a list of potential nominees before the election, he ultimately never did. Legal groups and media outlets have speculated on who Trump could choose, however, with potential names including U.S. District Judge Aileen Cannon, who has come under fire for rulings in Trump’s favor; Fifth Circuit Court of Appeals Judge James Ho; 11th Circuit Judge Barbara Lagoa, who was a finalist for Justice Amy Coney Barrett’s Supreme Court seat; 9th Circuit Judge Lawrence Van Dyke, who has been criticized for his anti-LGBTQ views, and Kristen Waggoner, who leads Alliance Defending Freedom, a right-wing legal group that’s brought numerous cases before the court.
Trump’s win has also renewed calls among Democrats for left-leaning Justice Sonia Sotomayor to retire before January so President Joe Biden and the Democratic-controlled Senate could quickly confirm a successor, as the 70-year-old justice is the oldest liberal on the court. That remains a longshot possibility, however: Sotomayor has not given any indications she plans to step down, and Senate Democrats didn’t seem to have an appetite to force her out when the question of her retirement was floated earlier this year. It would also be difficult for Biden and Senate Democrats would be able to name and confirm a successor so quickly, particularly given Democrats’ razor-thin 51-seat majority in the chamber.
If Trump does name two justices to the court during his second term, he will have appointed the most justices of any president since Franklin Delano Roosevelt, according to The Washington Post.
Trump’s potential return to appointing Supreme Court nominees comes as public trust in the court has broadly declined in recent years while his conservative appointees have continued their tenure on the court. The court’s conservative majority has issued a slew of rulings that have garnered public outrage on the left, such as overturning Roe v. Wade and giving Trump some immunity from criminal charges, and a series of ethics scandals have further eroded public trust. Gallup polls show that while public approval in the Supreme Court did go up during Trump’s presidency—going from 45% in Sept. 2016 to hitting a high of 58% in July 2020—it has eroded since then. Public approval plunged from 53% in Aug. 2020 to 40% in Sept. 2021 and has remained below 45% ever since, with a record 58% of respondents disapproving of the court in Sept. 2022, soon after Roe was overturned.