WASHINGTON: Donald Trump has already appointed three Supreme Court justices. In his second term, he could well have a chance to name two more, creating a high court with a Trump-appointed majority that could serve for decades.
The decisive outcome spares the court from having to wade into election disputes. It also seems likely to change the tenor of cases that come before the justices, including on abortion and immigration.
The two eldest justices — Clarence Thomas, 76, and Samuel Alito, 74 — could consider stepping down knowing that Trump, a Republican, would nominate replacements who might be three decades younger and ensure conservative domination of the court through the middle of the century, or beyond.
Trump would have a long list of candidates to choose from among the more than 50 men and women he appointed to federal appeals courts, including some of Thomas’ and Alito’s former law clerks.
If both men were to retire, they probably would not do so at once to minimize disruption to the court. Justices David Souter and John Paul Stevens retired a year apart, in the first two years of Barack Obama’s presidency.
Thomas has said on more than one occasion that he has no intention of retiring.
But Ed Whelan, a conservative lawyer who was once a law clerk to Justice Antonin Scalia, wrote on the National Review’s Bench Memos blog that Thomas will realize that the best way to burnish his legacy is to have a like-minded justice replace him and retire before the midterm congressional elections.
If Thomas stays on the court until near his 80th birthday, in June 2028, he will surpass William O. Douglas as the longest-serving justice. Douglas was on the court for more than 36 years.
There’s no guarantee Republicans will have their Senate majority then, and Thomas saw what happened when one of his colleagues didn’t retire when she might have, Whelan wrote. “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,” Whelan wrote.
Ginsburg died in September 2020, less than two months before Joe Biden’s election as president. Trump nominated Amy Coney Barrett to fill the vacancy and majority Republicans rammed her nomination through the Senate before the election.
Barrett, along with Justices Neil Gorsuch and Brett Kavanaugh, Trump’s other two high court appointees, joined Thomas and Alito to overturn Roe v. Wade and end the national right to abortion.
Along with Chief Justice John Roberts, the conservatives also have expanded gun rights, ended affirmative action in college admissions, reined in Biden administration efforts to deal with climate change and weakened federal regulators by overturning a 40-year-old decision that had long been a target of business and conservative interests.
The court’s landmark decision didn’t end its involvement with abortion: the justices also considered cases this year on emergency abortions in states with bans and access to medication abortion.
The new administration seems likely to drop Biden administration guidance saying doctors need to provide emergency abortions if necessary to protect a woman’s life or health, even in states where abortion is otherwise banned. That would end a case out of Idaho that the justices sent back to lower courts over the summer.
Access to the abortion medication mifepristone is also facing a renewed challenge in lower courts. That suit could have an uphill climb in lower courts after the Supreme Court preserved access to the drug earlier this year, but abortion opponents have floated other ways a conservative administration could restrict access to the medication. That includes enforcement of a 19th century “anti-vice” law called the Comstock Act that prohibits the mailing of drugs that could be used in abortion, though Trump himself hasn’t stated a clear position on mifepristone.
Immigration cases also are bubbling up through the courts over the Obama era Deferred Action for Childhood Arrivals program. Trump tried to end DACA in his first term, but he was thwarted by the Supreme Court. Now, the conservative appeals court based in New Orleans is considering whether DACA is legal.
One of the first Trump-era fights to reach the Supreme Court concerned the ban on visitors from some Muslim-majority countries. The justices ended up approving the program, after two revisions.
He spoke during the campaign about bringing back the travel ban.