(CNN)- Former President Donald Trump’s return to power has sparked a flurry of speculation and cross-party disputes over the Supreme Court’s potential retirement, underscoring how the departure of even one of the nine justices could shape law for generations. .
Conservatives are preparing for Justices Clarence Thomas or Samuel Alito — both in their 70s — to resign in the next two years, whether they are ready to do so or not.
Meanwhile, on the left, Trump’s election has revived hopes among some for the sudden retirement of Justice Sonia Sotomayor, the court’s most senior liberal, and President Joe Biden confirming a replacement by the end of the year.
Even if any of those retirements occur in the coming weeks or months — a big “if” given that judges often wait until age 80 to resign — no one will upset the existing 6-year-old balance of power. The court will change. However, if Trump nominates one or two younger, more like-minded conservative justices to lifetime terms, he would cement the court’s shift to the right for decades.
“Alito is happily packing his bags,” Mike Davis, a conservative jurist who could play a key role in helping Trump choose his judges, predicted on social media this week.
Attention to potential vacancies on the Supreme Court has so far been driven entirely by forces outside the court and largely by speculation based on a series of vague clues and past practices. It has also prompted a debate in Republican legal circles that spilled over into the public on Friday over whether such speculation is justified.
There is also a real possibility that this could have the opposite effect.
Progressive groups put intense pressure on Justice Stephen Breyer to resign during Biden’s first year in the White House, with a truck carrying billboards in large letters urging him to “retire” in Washington. Bill Clinton’s nominee ignored trucks and requests and stayed on for another year, eventually announcing his departure in 2022.
The Justice Department said Friday, “Nobody except Justices Thomas and Alito knows when or if they will retire, and talking about them as if the meat has reached its sell-by date is reckless, uninformed and, frankly, “It’s absolutely rude.” A rare public statement. Conservative judicial activist Leonard Leo, who was instrumental in helping Trump fill judicial vacancies in his first term.
Washington lawyer Charles Cooper, a longtime friend of Alito who has known Thomas for decades, joked about some of the speculation on social media.
Cooper said, “It is unbecoming of members of the conservative legal movement to conduct any kind of campaign to pressure these two historically great judges to retire.” “Questions cannot even be raised about his physical or mental health.”
Former Supreme Court clerk and legal commentator Ed Whalen said he agreed with Leo’s view.
“It’s one thing to guess what the judge will decide,” Whalen told CNN. “It’s quite another thing to try to tell the judge what to do.”
Whalen’s expectation, as he wrote in National Review this week, is that Alito will retire this spring and Thomas in 2026.
However, Davis, who chairs the conservative Article III Project, rejected Leo’s criticism.
Davis said, “It’s ridiculous that Washington conservatives now pretend to care about Supreme Court justices after taking all the money and sitting on the sidelines during years of brutal attacks on conservative judges.”
On the left and the right, behind much of the concern is the late Justice Ruth Bader Ginsburg. When the liberal icon died in September 2020 at the age of 87, Trump appointed then-Judge Amy Coney Barrett, who was more than 35 years his junior, to replace her. As a result, several landmark precedents have been overturned in the last four years, most notably Roe v. Wed in 2022.
Age and health were more important factors for Ginsburg than for Thomas, Alito, or Sotomayor. Ginsburg was diagnosed with pancreatic cancer in 2009, during the first year of then-President Barack Obama’s term in office. Although Sotomayor has made it public that she suffers from Type 1 diabetes, she shows no signs of slowing down. The same can be said about Thomas, who is becoming increasingly famous on the right, especially since six years ago he became the court’s longest-serving justice.
Thomas was hospitalized for about a week in 2022 with what a court spokesperson said was an infection.
Discussions of Sotomayor resigning so that Biden can name a successor and ensure the seat remains a reliable vote for the liberal wing have been going on for months and have gone nowhere.
The process of transferring a nominee to the Supreme Court takes a long time, often several months. Even assuming there are no setbacks, that is unlikely to give Biden enough time to secure confirmation before the GOP takes control of the Senate in early January.
Thomas, 76, is the oldest of the nine current justices, followed by Alito, 74, and Sotomayor, 70. Supreme Court Chief Justice John Roberts, nominated by George W. Bush, will turn 70 next year. Breyer was 83 when he resigned. Justice Anthony Kennedy, nominated by Ronald Reagan, was 82 when he stepped down from the bench in 2018.
One of Trump’s most significant accomplishments during his first term was the influx of nominees to the federal judiciary, not only did he appoint three justices to the Supreme Court, but he also appointed more than 200 judges to federal district courts and appeals courts. Did. In his only term, Trump was able to flip three circuits from a Democratic majority to a Republican majority.
Biden has managed to change only one of those circuits.
The flurry of appointments during his first term will give Trump a wide range of potential nominees to choose from if a vacancy occurs on the Supreme Court. Judge Andrew Oldham, whom Trump appointed to the New Orleans-based 5th U.S. Circuit Court of Appeals in 2018 and previously clerked for Alito, is often mentioned as a possible candidate. Judge Neomi Rao is also a former staffer of Thomas, whom Trump appointed to the Washington Circuit in 2019. Judge James Ho, another former Thomas staffer, was appointed by Trump to the 5th Circuit in 2018.
The age of all three is between 40 and 50 years.
A secret Martha-Ann Alito recording surfaced earlier this year fueled speculation that the judge was fed up with Washington — and was considering retirement — after revelations that she had sex at her homes in Virginia and New Jersey. Several controversial flags were flown. However, Martha-Ann Alito’s statements were vague and Alito himself has given no public indication that he is preparing his resignation.
For one thing, judges almost always retire when a president of the same party who appointed them takes power, partly because that increases the likelihood that their replacement will bring the same judicial philosophy to the court. This usually occurs in the spring, just before the end of the Supreme Court session. And next year, Republicans will also control the Senate with a strong majority, making it easier for Trump to get nominees confirmed.
However, the Supreme Court is also an institution that rewards seniority, including opinion making. As a senior liberal justice, Sotomayor often finds herself in a position to lead dissent in the court’s highest-profile cases. As a senior associate justice, Thomas has recently had the opportunity to ask the first question at oral arguments and is the first to speak after Roberts when the justices meet privately to discuss cases.
Thomas’ friends, Alito and Sotomayor, told CNN earlier this year that the justices have sometimes thought about retirement, but the tone reflected casual thoughts rather than concrete plans.
The Supreme Court did not respond to a request for comment.
“Given the importance of the Supreme Court, I don’t think it can be avoided,” said Josh Blackman, a professor at South Texas College of Law in Houston. Josh Blackman has publicly speculated about judicial vacancies on a popular conservative legal blog. “To be fair, it is rude to talk about a judge deciding to resign. It’s very common to talk about these things when a new administration comes to town.”
CNN senior Supreme Court analyst Joan Biskupic contributed to this report.