CNN
—
Former President Donald Trump’s return to power has sparked speculation and partisan bickering over the possible resignation of the Supreme Court justices, and how the resignation of just one of the nine justices could change generations. This highlights the potential for shaping the law over time.
Conservatives are preparing for Justices Clarence Thomas and Samuel Alito, both in their mid-70s, to resign within the next two years, whether the justices want to resign or not.
Meanwhile, on the left, some believe that President Trump’s election will lead to the sudden resignation of Justice Sonia Sotomayor, the court’s senior liberal, and that President Joe Biden will nominate and approve her replacement by the end of December. Far-flung expectations are being rekindled.
Even if any of these resignations happen in the coming weeks or months, that’s a big assumption given that judges often waited until they were in their 80s to step down. No one is likely to change the current balance of power on the 6-3 conservative court. But by appointing one or two young, like-minded conservative justices for life, President Trump will solidify the court’s rightward tilt for decades to come.
“Alito is gleefully clearing the floor,” Mike Davis, a conservative legal operative who could play a key role in helping President Trump choose judicial appointments, predicted on social media this week.
Attention to the potential Supreme Court vacancy has so far been driven entirely by forces outside the court and rampant speculation based on a series of vague clues and past practices. This has sparked debate within the Republican legal community and, on Friday, made headlines nationally over whether such speculation is appropriate.
There is a real possibility that it will backfire.
Progressive groups have pushed hard for Justice Stephen Breyer to step down during Biden’s first year in the White House, at one point having him drive a sign truck around Washington, D.C., urging him to “retire” in capital letters. Candidate Bill Clinton ignored the truck and its demands, holding out for another year before finally announcing his resignation in 2022.
Leonard Leo, a conservative judicial activist, said, “No one knows when or if they’re going to leave office except Justice Thomas and Justice Alito. It’s unwise to talk about them like expired meat.” It’s just ignorant, ignorant and frankly vulgar.” In an unusual public statement Friday, he said he helped fill judicial vacancies during President Trump’s first term.
Charles Cooper, a Washington lawyer who is a longtime friend of Mr. Alito and has known Mr. Thomas for decades, scoffed at some of the speculation on social media.
“It’s unseemly that members of the conservative legal movement would wage any kind of campaign to force these two historically great judges into retirement,” Cooper said. “No questions could be raised about their physical or mental health.”
Ed Whelan, a former Supreme Court clerk and legal commentator, said he agreed with Leo’s view.
“It’s one thing to speculate about what the judge will decide,” Whelan told CNN. “It’s quite another thing to tell a judge what to do.”
Whelan’s expectation is for Alito to retire this spring and Thomas to retire in 2026, he wrote in this week’s National Review.
But Davis, chairman of the conservative Article III Project, rejected Leo’s criticism.
“Conservatives in Washington, D.C., who stood by with big bucks during years of vicious attacks on conservative judges, are now pretending to care about Supreme Court Justices. It’s interesting to see,” Davis said.
Behind much of the unrest on both the left and the right is the late Justice Ruth Bader Ginsburg. When the liberal icon passed away in September 2020 at the age of 87, Trump nominated then-Justice Amy Coney Barrett, more than 35 years his junior, to replace her. Over the past four years, several historical precedents have been overturned as a result, most notably Roe v. Wade in 2022.
Age and health were bigger factors for Ginsburg than for Thomas, Alito and Sotomayor. Ginsburg was diagnosed with pancreatic cancer in 2009, during President Barack Obama’s first year in office. Sotomayor has been open about living with type 1 diabetes and shows little sign of slowing down. So is Thomas, whose reputation on the right has grown since he became the court’s chief justice six years ago.
Thomas was hospitalized for nearly a week in 2022 with what a court spokesperson described as an infection.
Talk of the outside mayor resigning so Biden could name a successor and secure the seat as a reliable vote for liberals has been smoldering for months, but has gone nowhere.
The transfer process for Supreme Court nominees takes a considerable amount of time, sometimes lasting several months. Assuming there are no problems, it is unlikely that Biden will have enough time to win confirmation before Republicans take control of the Senate in early January.
At 76 years old, Justice Thomas is the oldest of the current nine justices, followed by Justice Alito at 74 and Justice Sotomayor at 70. Chief Justice John Roberts, President George W. Bush’s nominee, will turn 70 next year. Mr. Breyer was 83 years old when he resigned. Justice Anthony Kennedy, an appointee of President Ronald Reagan, had just turned 82 when he left the court in 2018.
One of the most important accomplishments of President Trump’s first term was the federal judiciary, including the three justices he nominated to the Supreme Court as well as the more than 200 judges he nominated to the federal district courts and courts of appeals. This led to a flood of candidates. In his single term, Trump was able to flip three circuits from majority Democratic to majority Republican.
Biden succeeded in restoring only one of those circuits.
The rapid increase in the number of candidates during his first term means that if there is a vacancy, there will be a large number of Supreme Court nominees to choose from. Judge Andrew Oldham, who President Trump nominated in 2018 to the New Orleans-based 5th Circuit Court of Appeals and who previously clerked for Alito, is often mentioned as a possible candidate. The same goes for Judge Neomi Rao, a former Thomas clerk whom President Trump appointed to the D.C. Circuit in 2019. Judge James Ho, another former Thomas clerk whom President Trump appointed to the 5th Circuit in 2018, is another.
All three are in their late 40s to early 50s.
Martha Ann Alito’s secret recordings came to light earlier this year, revealing several controversial flags being flown at her homes in Virginia and New Jersey, prompting the judge to become fed up with Washington and retire. Speculation grew that he was thinking about it. But Martha Ann Alito’s statements were vague, and Alito himself has not publicly indicated that he is preparing to resign.
On the other hand, judges almost always retire when a president of the same party that appointed them comes to power, in part because their successors are more likely to bring a similar judicial philosophy to the court. be. It often occurs in the spring, just before the end of a Supreme Court justice’s term. And next year, Republicans will firmly control the Senate, loosening President Trump’s ability to approve nominees.
Listen to secret recording of Martha Alito discussing flag controversy
However, the Supreme Court is also an institution where seniority is important in matters such as forming opinions. As a senior liberal justice, Sotomayor is often at the forefront of dissenting opinions in the court’s most high-profile cases. As the most senior associate justice, Mr. Thomas has recently been given the opportunity to ask the first questions during oral arguments, and he will be the first after Mr. Roberts when the justices meet privately to discuss the case. will make a statement.
Friends of Thomas, Alito and Sotomayor told CNN earlier this year that while the justices sometimes ponder retirement, the tenor reflects a casual thought rather than a concrete plan. he said.
The Supreme Court did not respond to requests for comment.
“Given the importance of the Supreme Court, I think this is inevitable,” said Josh Blackman, a professor at South Texas College of Law in Houston, who writes about the judiciary on a popular conservative law blog. There has been public speculation about government vacancies. “To be fair, it’s wild to talk about a judge’s decision to resign. And it’s pretty common for a new administration to come to town and talk about these things.”
CNN Chief Supreme Court Analyst Joan Biskupic contributed to this report.
