What Donald Trump's Victory Means for the Supreme Court

Special 2024 elections edition

Donald Trump’s election as president, combined with Republicans’ winning control of the Senate, offers the prospect of a strong conservative majority on the Supreme Court for the next two decades.

Thank you, Harry Reid!

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Donald Trump will become president again on January 20, 2025. The Senate that convenes on January 3, 2025 will have a Republican majority of at least 52 senators and probably somewhere in the range of 53 to 55.

Thanks to the abolition of the filibuster for Supreme Court nominees, a Republican-controlled Senate will have an easy time confirming any high-quality Supreme Court nominee President Trump selects.

Let’s take a close look at the ages that the current justices will reach in 2025:

What we see is that the two oldest justices, Clarence Thomas and Samuel Alito, are judicial conservatives, as are three of the four youngest justices, each of whom Trump appointed in his first term: Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett.

If Trump is able to replace both Thomas and Alito, he will have appointed a majority of the Supreme Court justices—a distinction that, if my quick check is correct, only five previous presidents have achieved. More importantly, he will have created a strong majority of conservative justices that is likely to endure for the next two decades.

I expect Alito to announce in the spring of 2025 that he will retire from the Court. I think it very likely that Thomas will do the same in the spring of 2026.

Some folks insist that Thomas will never retire. But it would be foolish of him to risk repeating Ruth Bader Ginsburg’s mistake—hanging on only to die in office and be replaced by someone with a very different judicial philosophy. Thomas should recognize that the best way to entrench his jurisprudential legacy is to enable a strong originalist to fill his seat and secure an originalist majority for decades to come.

Would Trump select high-quality nominees to replace Alito and Thomas? I sure think so. For starters, he has a set of excellent candidates he should think very highly of: the many judges he wisely appointed to the federal courts of appeals in his first term. More than 30* of his appellate nominees are in the right age range to be considered for the Supreme Court, and most of them would be very well received by Republican senators, the conservative legal community, and Trump’s core political base.

There would be no upside for Trump to select a poorly qualified candidate. If his nominee isn’t demonstrably a judicial conservative, the nomination could suffer the same collapse as George W. Bush’s nomination of Harriet Miers. A bad pick for a first vacancy—Alito’s seat, in my speculation—would also tend to dissuade Thomas from stepping down.

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I say “Thank you, Harry Reid!” because (as we shall discuss in detail in future posts) it was Democratic majority leader Harry Reid’s decision in November 2013 to abolish the filibuster—the 60-vote threshold for cloture—for lower-court nominees that led, as Reid himself anticipated and invited, to the abolition of the filibuster for Supreme Court nominees in 2017. Without that abolition, it is doubtful that Brett Kavanaugh and Amy Coney Barrett would ever have been nominated, much less confirmed. And there is plenty of reason to think that the filibuster would still be available as a tool of minority senators to block judicial appointments.

As I wrote back in November 2013:

I don’t see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee….

It would be funny indeed if folks on the Left who evidently rue Senate Democrats’ opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.

It is even more remarkable that Reid’s strategic error now promises to maintain a strong conservative majority on the Supreme Court for many years to come.

* In my initial posting, I badly undercounted the number.