Trump may have named his last Supreme Court justice | Opinion

The Supreme Court’s future could ride on the midterm elections. Whoever controls the Senate will help decide whether President Donald Trump gets another appointment, or whether Democrats can block his nominees until after the 2028 election.

Take Justice Samuel Alito. Asked by CBS News recently whether he’d considered retiring, he said he had. “It’s something that I think that somebody at my age has to think about every term,” he said. “But I thought that I could still make a valuable contribution, which is why I became a justice and a judge in the first place.”

Alito, 76, also told Bloomberg he decided months ago to stay through this term, which ends in June. That means the earliest he’s likely to step down is summer 2027 – after the new Senate is sworn in.

The court has a 6-3 conservative majority. Its ideology is more nuanced than that number suggests, but Republicans are eager to protect that majority and Democrats are eager to chip away at it.

The Supreme Court is on the midterm election ballot

Divided government looks all but certain. Democrats are heavily favored to retake the House. The open question is whether Republicans hold the Senate.

Presidents nominate Supreme Court justices, and the Senate confirms them. Those votes have grown increasingly bitter, and both parties are now willing to play dirty to get the justices they want.

Republicans hold 53 seats, so Democrats need to flip four to win the majority. Even a one- or two-seat edge could give them the power to block Trump’s Supreme Court nominees until after the 2028 election. The majority controls which nominations make it out of the Senate Judiciary Committee and whether they ever reach a floor vote. That’s the main way a party opposing the president can stop a nominee.

Then there’s Pennsylvania Sen. John Fetterman – a Democrat, for now – and the persistent talk of a party switch. At 51-49, a Fetterman switch would make it 50-50, with Vice President JD Vance breaking ties. So Democrats likely need at least 52 seats to be sure they can stop a Trump pick.

When Justice Antonin Scalia died in 2016, the Republican-controlled Senate refused to hold a vote on then-President Barack Obama’s nominee, Judge Merrick Garland, for nearly 10 months, leaving the seat open until after the election. Republicans argued the American people should have a voice, so the next president should fill the vacancy. Voters elected Trump, and the seat went to Justice Neil Gorsuch.

When Justice Ruth Bader Ginsburg died six weeks before the 2020 election, Republicans reversed course. They confirmed Justice Amy Coney Barrett 30 days of her nomination, just eight days before Election Day. Democrats called the switch hypocritical, and they had a point.

Then-Senate Majority Leader Mitch McConnell, who orchestrated both the Garland blockade and the Barrett confirmation, justified the difference with politics. In 2016, a Republican Senate faced a Democratic president. In 2020, Republicans controlled both. Still, the argument that voters deserved a say before a seat was filled applied in one case but not the other.

Democrats haven’t had a chance to play down to Republicans’ level on a Supreme Court seat. The only Democratic nominee confirmed in the past decade is Justice Ketanji Brown Jackson, nominated by President Joe Biden and confirmed in 2022.

But they’re hardly innocent. In 2013, Democrats went nuclear to end the Senate filibuster for lower-court and executive nominees. In 2017, they filibustered Gorsuch, which led Republicans to scrap it for Supreme Court picks, too.

Don’t expect Alito, Thomas to retire

Potential vacancies are a sensitive subject. Justices serve for life, and while most now retire, some still leave the court through death. 

Retirements tend to be timed for when a justice trusts the president to pick an agreeable successor. Deaths aren’t, and they often set off tumultuous fights like the ones over Gorsuch and Barrett.

Alito’s decision to stay could leave him waiting years for another chance. If Democrats win the Senate in November and the White House in 2028, his next opening under a Republican president might not come until 2033, the year he turns 83. Any replacement named before then would be unlikely to share his ideology.

Justice Clarence Thomas, 78, is the other conservative whose name often comes up in retirement talk. But he has long been expected to take his life tenure quite literally. Chief Justice John Roberts, 71, is another conservative, but there’s been little talk of him stepping down.

Democrats winning the Senate now and the presidency in 2028 would also give them a chance to shore up their own seats. Justice Sonia Sotomayor, 72, is their likeliest candidate to retire under the next Democratic president. Until then, Democrats will be eager to make sure her seat doesn’t become the one that hands Republicans a 7-2 majority. A Democratic Senate would keep Trump from filling it.

The midterms are Democrats’ chance to freeze the court’s makeup through January 2029. Win the White House in 2028, and they can start chipping away at the conservative majority as seats open. If that happens, it could be a long time before Republicans get to put another justice on the court.

Dace Potas, a law student, is an opinion columnist for USA TODAY. Follow him on X: @DacePotas

This article originally appeared on USA TODAY: Trump may have named his last Supreme Court justice | Opinion

Reporting by Dace Potas, USA TODAY / USA TODAY

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