President Donald Trump, the incumbent Republican seeking re-election, or presumptive Democrat nominee former Vice President Joe Biden could appoint as many as four Supreme Court Justices in the next four years, making the issue yet again a major deciding factor as voters determine which one to back ahead of November’s electoral contest.
Rumors swirled this week that conservative Justices Clarence Thomas and Samuel Alito were considering retirement sometime soon. Thomas, 72, was appointed by George H.W. Bush in the early 1990s. Alito, 70, was appointed by George W. Bush in the early 2000s. Both are conservative stalwarts and vacancies of either of their positions could throw the new emboldened conservative majority on the court solidified by Trump’s appointment of Justice Brett Kavanaugh—who replaced swing vote Anthony Kennedy in 2018—into doubt.
Trump has already left his mark on the Supreme Court, driving it further to the right away from the middle, with the appointment of Kavanaugh to replace Kennedy and Justice Neil Gorsuch who replaced the late Antonin Scalia. But Chief Justice John Roberts, another George W. Bush appointee, has joined the liberal Justices on the Court in some recent key decisions helping hold back a rising potential conservative tide from the nation’s final arbiter of key disputes. But even with Roberts—who also presided, per the Constitution, over the GOP-led U.S. Senate’s impeachment trial that acquitted Trump of charges brought by Democrat-run U.S. House—joining the liberal wing on some decisions, the court is decidedly more conservative than in recent years.
Top conservatives close to Thomas and Alito quickly shot down the idea they would retire this year, with for instance Judicial Crisis Network president Carrie Severino—who once clerked for Thomas—saying such rumors circulate every year around this time.
“Every year, around this time, we start hearing some of the same rumors,” Severino said on Breitbart News Tonight this week on SiriusXM125 the Patriot Channel. “You heard them last year, the same ones. From my perspective — and I know Justice Thomas well, I clerked for him — I can tell you [with] one hundred percent certainty, that rumor, there is nothing to it.”
“I hear [these rumors] regularly every year or so, and that gives me serious pause as to the rumors about Justice Alito, as well, because it seems like it’s the same sources,” Severino added. “People love to speculate, especially around the end of the Supreme Court term, but most of the time I think it turns out to be nothing more than rumor.”
But even though Thomas and Alito are unlikely to actually leave the court this year, in a second Trump term they very well could retire to make way for younger conservative Justices. That raises the stakes, especially with their advancing age—Scalia died at 79 and both are fast-approaching that age—for this November’s contest between Trump and Biden.
But Thomas and Alito are not the only two current Justices on the nine-seat court whose seats could become vacant, thereby requiring appointment from the president—whoever he may be—to replace them. Ruth Bader Ginsburg, the stalwart liberal Justice, is now 87 years old and constantly faces health issues—as she has been in and out of the hospital for a variety of procedures and ailments in recent years.
Fellow liberal Justice Stephen Breyer is advancing in age as well, now at 81 years old—he will be 82 by election day in November—meaning that two of the Court’s four liberal Justices are past 80.
All of this means, theoretically, the next president—whether it be Trump re-elected to serve another term, or Biden defeating Trump in November—could expect to appoint as many as four Justices to the Supreme Court in a single term. That raises the stakes, when it comes to the highest court in America, even higher than they were in 2016 when the public knew there was at least once vacancy—Scalia died earlier in the year and Senate Republicans refused to confirm outgoing Democrat President Barack Obama’s nomination of liberal Merrick Garland to replace him—and potentially a looming second or third with potential retirements or deaths of Kennedy and Ginsburg.
Trump ended up, in his first term, getting two Justices confirmed in Gorsuch and Kavanaugh—the Scalia seat and the Kennedy one as the Ronald Reagan-appointed swing vote Justice did end up retiring in 2018. But if Trump is re-elected, and things line up in the clearest way in terms of retirements and deaths, in a second term he could appoint as many six total Justices—four more—to the Supreme Court. That could, if Ginsburg or Breyer either retire or pass away in a second Trump term, mean the liberal minority on the Supreme Court shrinks from four dedicated left-of-center Justices down to just two in Sonia Sotomayor and Elena Kagan.
But the inverse is also true. If Biden ends up winning, he could remake the Supreme Court in a leftist vision, appointing as many as four Justices depending on deaths and retirements from Ginsburg, Breyer, Thomas, and Alito.
So then the question becomes whether voters are okay with what either man intends to do with regard to the court should he win in November. Trump, like he did in 2016, intends to release a list of potential Supreme Court Justice nomination selections from which he says he will make his selection. In a mid-June tweet, the president said he will release the list by Sept. 1:
I will be releasing a new list of Conservative Supreme Court Justice nominees, which may include some, or many of those already on the list, by September 1, 2020. If given the opportunity, I will only choose from this list, as in the past, a Conservative Supreme Court Justice…
— Donald J. Trump (@realDonaldTrump) June 18, 2020
Biden, on the other hand, has suggested he wants to nominate a black woman to the Supreme Court. But he has not committed to releasing a list of potential nominees, opting to instead unlike Trump keep voters in the dark about what he is thinking about potential picks for the Supreme Court.
“One thing I hesitate to do is follow anything the President does at all because he usually does it all wrong,” Biden said at his first press conference in months earlier this week. “I have— we are putting together a list of a group of African-American women who are qualified and have the experience to be on the Court. I am not going to release that until we go further down the line of vetting them, as well.”