When people start to talk about Supreme Court justices retiring ahead of midterm elections, you know the outlook is not good for the upcoming cycle.
That is exactly what is happening now, just as it happened to Justice Stephen Breyer in the middle of Joe Biden’s term in office.
Rumors are flying that conservative Justices Samuel Alito and Clarence Thomas are facing growing pressure to step down now, while Donald Trump can still replace them with like-minded jurists, but the president and the justices themselves are not hearing any of it.
Justice Ruth Bader Ginsburg refused to step down from the bench when Barack Obama was in office, during which time she could have been replaced with a liberal justice.
In September 2020, she passed away with Trump having only a few months left in office, even though we did not know that for sure at the time.
Trump nominated and saw the confirmation of Amy Coney Barrett as Ginsburg's replacement before he left office, bringing his total number of high court appointments to three over the course of his first four-year term.
Liberals were furious at the time, and rather than mourning Ginsburg's loss, they blasted her for not having retired under a Democrat president.
Fast-forward to 2022, when things were not looking especially good for Biden, and pressure was being applied to Justice Breyer to retire while the then-president could still get a liberal justice confirmed to sit on the bench.
Judge Nancy Gertner opined at the time that the 83-year-old justice really had no choice but to step down given the circumstances.
She added, “I think that the Ginsburg model of someone who was making contributions to the court up until the very end but who ultimately dies in the Trump administration and winds up being replaced by someone who is her polar opposite -- he’s an institutionalist on the one hand, but he was deeply political on another.”
Breyer was eventually replaced by Justice Ketanji Brown Jackson, the only Supreme Court pick Biden would make during his time in office.
Let’s hit that fast-forward button one more time, and now conservatives have the two oldest justices on the court, and many are worried that if Republicans lose the Senate in 2026 and the White House in 2028, Justice Thomas, 77, and Justice Alito, 75, will wind up pulling a Ginsburg and handing the seats to Democrats. And let’s not forget that Chief Justice John Roberts is 70 years old, so there is a real concern that we could lose three seats and turn the majority back over to liberals.
Alito has already stated he has no intention of retiring anytime soon and that we will probably have to pry him off the bench, and Thomas is much the same.
When Trump was asked about pressuring the justices to step down so that he could appoint his fourth and fifth justices to the bench, almost certainly locking in a conservative majority for decades, he responded, "I hope they stay, 'cause I think they’re fantastic."
Trump loves them because he knows that, regardless of the case at hand, Alito and Thomas will always take the conservative side, whereas the three justices Trump appointed have regularly crossed over to side with the liberals on the bench. From his perspective, Alito and Thomas are the only two votes on which he can reliably count right now.
