Trump’s election sparks speculation and infighting over future Supreme Court vacancies

(CNN) — Former President Donald Trump’s return to power is setting off a flurry of speculation and interparty bickering about potential retirements on the Supreme Court, underscoring how even a single departure by one of the nine justices can shape the law for generations.

Conservatives are preparing for Justices Clarence Thomas or Samuel Alito – both in their mid-70s – to step down within the next two years, whether the justices are ready to quit or not.

On the left, meanwhile, Trump’s election has relit far flung hopes among some for a sudden retirement by Justice Sonia Sotomayor, the court’s senior liberal, and for President Joe Biden to nominate and confirm a replacement by the end of December.

Even if any of those retirements take place in coming weeks or months – a big if, given that justices have often waited until their 80s to step down – none would change the current balance of power on the 6-3 conservative court. But by installing one or two younger and like-minded conservative justices into lifetime appointments, Trump would solidify the court’s rightward turn for decades to come.

“Alito is gleefully packing up his chambers,” Mike Davis, a conservative legal operative who could play a key role helping Trump choose judicial appointments, predicted on social media this week.

The attention on potential Supreme Court vacancies has so far been driven entirely by forces outside the court – and rampant speculation based on a series of murky clues and past practices. That has even inspired a debate within Republican legal circles that spilled into public view Friday over whether such speculation is appropriate.

There is also a real chance that it could backfire.

Progressive groups leaned heavily on Justice Stephen Breyer to step down during Biden’s first year in the White House, at one point driving a billboard truck around Washington, DC, that urged him, in capital letters, to “RETIRE.” The Bill Clinton nominee ignored the truck – and the demands – and stuck around another year, ultimately announcing his departure in 2022.

“No one other than Justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed, and, frankly, just crass,” conservative judicial activist Leonard Leo, who was instrumental in helping Trump fill out judicial vacancies in his first term, said in a rare public statement on Friday.

Washington lawyer Charles Cooper, a longtime friend of Alito who has also known Thomas for decades, scoffed at some of the speculation on social media.

“It’s unseemly for members of the conservative legal movement to be mounting any type of campaign to pressure these two historically great justices into retirement,” Cooper said. “No questions could even be raised about their physical or mental health.”

Ed Whelan, a former Supreme Court clerk and legal commentor, said he agreed with Leo’s take.

“It’s one thing to guess what a justice will decide to do,” Whelan told CNN. “It’s quite another to try to tell a justice what to do.”

Whelan’s expectation, he wrote in the National Review this week, is for Alito to retire this spring and Thomas in 2026.

But Davis, who is president of the conservative Article III Project, rejected the criticism from Leo.

“It’s amusing to watch DC conservatives pretend to care about Supreme Court justices now, after they sat on the sidelines with all the money during the years of vicious attacks against conservative justices,” Davis said.

Behind much of the anxiety, on both the left and the right, is the late Justice Ruth Bader Ginsburg. When the liberal icon died in September 2020 at 87, Trump named then Judge Amy Coney Barrett, more than 35 years her junior, to replace her. The past four years have seen several historic precedents overturned as a result, most notably Roe v. Wade in 2022.

Age and health were bigger factors for Ginsburg than they are for Thomas, Alito or Sotomayor. Ginsburg had been diagnosed with pancreatic cancer in 2009 – during President Barack Obama’s first year in office. While Sotomayor has been public about living with type 1 diabetes, she has showed little sign of slowing down. The same goes for Thomas, who is increasingly celebrated on the right after becoming the court’s senior associate justice six years ago.

Thomas was hospitalized for nearly a week in 2022 for what a court spokesperson described as an infection.

Talk of Sotomayor stepping down so that Biden could name a successor and ensure the seat remains a reliable vote for the liberal wing has simmered for months and has gone nowhere.

The process of moving a Supreme Court nominee takes considerable time – often several months. Even assuming no hiccup, there is not likely enough time for Biden to secure a confirmation before the GOP takes control of the Senate in early January.

Thomas, at 76, is the oldest of the current nine justices, followed by Alito, at 74, and Sotomayor, who is 70. Chief Justice John Roberts, a George W. Bush nominee, will turn 70 next year. Breyer was 83 when he stepped down. Justice Anthony Kennedy, nominated by Ronald Reagan, had just turned 82 when he left the bench in 2018.

Trump’s impact already is being felt

One of Trump’s most significant accomplishments during his first term was flooding the federal judiciary with nominees – not just the three justices he placed on the Supreme Court – but also more than 200 judges he named to federal district and appeals courts. In his single term, Trump was able to flip three circuits from majority Democratic appointees to majority Republican nominees.

Biden has managed to flip just one of those circuits back.

The surge of nominees during his first term will give Trump a large crop of potential candidates to choose from for the Supreme Court if an opening occurs. Judge Andrew Oldham, who Trump named to the New Orleans-based 5th US Circuit Court of Appeals in 2018 and who previously clerked for Alito, is often mentioned as a possible candidate. So, too, is Judge Neomi Rao – a former Thomas clerk who Trump put on the DC Circuit in 2019. Judge James Ho, another former Thomas clerk who Trump put on the 5th Circuit in 2018, is another.

All three are in their late 40s or early 50s.

A secret recording of Martha-Ann Alito revealed earlier this year fueled speculation that the justice was fed up with Washington – and considering retirement – after revelations that several controversial flags were flown at his homes in Virginia and New Jersey. But Martha-Ann Alito’s remarks were vague and Alito himself has given no public indication that he is preparing to step down.

On the one hand, justices almost always retire when a president of the same party who appointed them takes power – in part because it increases the chances their replacement will bring a similar judicial philosophy to the court. That often happens in the spring, just before the end of the Supreme Court’s term. And next year, Republicans will also control the Senate with a firm majority, easing Trump’s ability to confirm nominees.

But the Supreme Court is also an institution that rewards seniority, including in the crafting of opinions. As the senior liberal justice, Sotomayor is often in the position to assign herself the lead dissent in the court’s highest-profile cases. As the most senior associate justice, Thomas has recently been afforded the opportunity to ask the first question at oral arguments and he is the first to speak after Roberts when the justices meet in private to discuss cases.

Friends of Thomas, Alito and Sotomayor told CNN earlier this year that while the justices have, at times, mused about retirements the tenor reflected casual thoughts rather concrete plans.

The Supreme Court did not respond to a request for comment.

“Given the importance of the Supreme Court, I don’t think this is avoidable,” Josh Blackman, a professor at the South Texas College of Law Houston who has also publicly speculated about judicial vacancies on a popular conservative legal blog. “To be fair, it is crass to talk about a justice making the decision to step down. It is also fairly common when a new administration comes to town to talk about these things.”’

CNN Chief Supreme Court Analyst Joan Biskupic contributed to this report.

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