Will Donald Trump Get to Pick New Supreme Court Justices?

Miami Herald

2 days ago

President Donald Trump may have the opportunity to appoint new Supreme Court justices during his second term in office, legal experts told Newsweek.
Trump reshaped the judiciary during his first term, appointing three justices to the nation's highest court. The next few years may grant him another chance to pick a new justice, who could serve on the court for decades. This could have major implications for public policy on issues related to abortion, LGBTQ+ rights, immigration and the scope of executive authority.
Conservative-leaning Justices Clarence Thomas, 76, Samuel Alito, 75, and Chief Justice John Roberts, 70, already face pressure from some on the right to step down over the coming years as Republicans currently hold a trifecta in the federal government. Not only is Trump president, but the GOP holds a 53-seat majority in the Senate. This means no Democrats would be needed to vote in favor of Trump's Supreme Court nominees.
Republicans could learn from Democrats about the consequences of their justices not retiring.
Late Supreme Court Justice Ruth Bader Ginsburg faced calls to retire during former President Barack Obama's administration from Democrats who wanted him to pick her replacement, rather than a Republican president potentially getting to do so. However, she declined to do so, continuing to serve during Trump's first term. She died in September 2020—just months before the election in which President Joe Biden would unseat Trump.
But it was Trump who got to pick her replacement, Justice Amy Coney Barrett, 53, who could continue serving on the court for decades. Conservatives point to that example as to why some of their older justices should retire while Trump can pick their successor.
Daniel Urman, a Northeastern University law professor, told Newsweek no one really knows when someone will leave the court, but that Alito and Thomas would be the most likely to retire to ensure someone with similar legal views could replace them on the court. But it may not necessarily be likely because they are now in the majority after years of being dissenting voices they care most about.
Pressure from the right may not be convincing to the justices, he said.
"Judges and especially Justices are very independent, and I don't think they will be too influenced by the pressure campaign," he said. "It's ultimately a very personal decision and the Ginsburg example is important but she was older and faced more health issues than the current justices."
None of the current justices on the court have publicly said they plan to retire anytime soon.
Former federal prosecutor Gene Rossi told Newsweek Thomas could wait until after the 2026 midterms to avoid giving Democrats a motivating issue ahead of the elections.
"However, if that happens, President Trump will pick a very young and conservative nominee because in his mind, he got burned with Justice Barrett," he said. "And he wants to put his further imprint on the tenor of the High Court."
Although many conservatives may like to see Roberts retire, it's not clear that is likely, Stephen Wermiel, professor of practice in constitutional law at American University, told Newsweek, noting that he is only 70. His willingness to stand up against Trump may also leave a question about whether he would be "less than thrilled to give Trump the opportunity to replace him."
Thomas, meanwhile, is only three years away from becoming the longest serving justice in history, and Alito also seemingly "still has a lot to say and do in the conservative Court," Wermiel said.
"I think it is uncertain whether Trump will have another Supreme Court vacancy," he added. "It is certainly likely that conservatives will start putting pressure on Chief Justice Roberts and Justices Clarence Thomas and Samuel Alito to retire after the current term so that Trump can appoint younger replacements."
Whether a jurist is conservative may not be the only question for Trump, analysts said.
Barbara McQuade, former federal prosecutor, told Newsweek Trump could consider loyalty in appointing justices, as some conservatives on the court have been willing to break with him on key issues.
"With frustration over some of the decisions by Justices Barrett and Roberts, there would be a push for justices who are not just conservative, but who are loyal to Trump himself," she said. "They could make a significant difference in some of the cases that are percolating up from the lower courts on issues such as birthright citizenship, transgender healthcare, and executive power."
Barrett, at times, has been more willing than some of the other conservatives on the bench to break from the president, such as when she opposed his efforts to deport alleged gang members under the Alien Enemies Act of 1798 and other key cases. Her independent streak has drawn backlash from conservatives aligned with Trump.
Urman agreed Trump may be inclined to nominate a loyalist in the future, noting that he "seems to prize loyalty above all other characteristics in his nominees," and that his appointees could be more aligned with Alito or Thomas than Barrett.
Former federal prosecutor Neama Rahmani told Newsweek: "It's likely Trump appoints at least one Supreme Court Justice, and maybe two. The odds increase over his four-year term, especially with Justices Thomas and Alito being in their mid-70s."
"Trump's Cabinet and officer appointees during his second term have been largely loyalists without the experience or independent streaks that frustrated him during his first term. His Supreme Court appointment(s) will likely reflect those same values, especially given the importance of the judiciary in standing in the way of his executive orders."
Roberts, during a fireside chat in May, reported The Hill: "I'm going out feet first. I say that now. I mean, I'm sure if your health declines, and if you recognize that you're a burden to the court rather than part of an assist to everybody, then, it'll be time to go."
It's unclear whether any justices plan to retire in the coming years, but the court will continue weighing in on key legal issues and serve as a check on Trump's executive authority.
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