7 days ago
Could Clarence Thomas Delay Retirement Over Trump Picks? Experts Weigh In
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Supreme Court Justice Clarence Thomas is unlikely to delay any hypothetical retirement to avoid being replaced by a President Donald Trump appointee, legal analysts have said.
Speaking with Newsweek, analysts rejected the suggestion that a spat between Trump and conservative legal groups, as well as tension over some of the appointments Trump has made, would be enough to change Thomas' tenure in the courts.
Why It Matters
As Republicans have a slim majority in both the House and Senate, the courts have emerged as one of the main impediments to policies the Trump administration has pursued. Trump has repeatedly called for the impeachment of federal judges who have blocked his orders and has appointed people to courts to suit his politics.
Thomas, a conservative judge, has served since 1991. If the 76-year-old retires, it will change the alignment and direction of the court, depending on who replaces him. He has made no public statements indicating whether he wishes to retire.
Associate Justice Clarence Thomas at the Supreme Court building in Washington, D.C., on October 7, 2022.
Associate Justice Clarence Thomas at the Supreme Court building in Washington, D.C., on October 7, 2022.
AP Photo/J. Scott Applewhite, File
What To Know
On Thursday, Trump took to his social media platform, Truth Social, to attack the conservative legal group the Federalist Society, saying he was "disappointed" by "the bad advice" the society had given him on judicial nominations during his first term.
The day before, Timothy Reif, a judge Trump appointed to the U.S. Court of International Trade, ruled in a unanimous panel to strike down the president's tariffs.
Meanwhile, Justice Amy Coney Barrett, whom Trump nominated in 2020, has recently drawn criticism for siding with liberals in the court. In May, Trump nominated Emily Bove to serve as a judge on a federal appeals court.
Amid these events, legal analysts have speculated that judges such as Thomas will be reluctant to retire over concerns about who might replace them.
The Wall Street Journal editorial board said that attacking conservative judges would make it less likely that they will retire, "lest they be replaced by partisan hacks."
However, writing in his Substack, Original Jurisdiction, the legal commentator David Lat said he didn't believe these events would affect Thomas' plans.
Newsweek spoke with legal analysts who shared their predictions on the matter.
What People Are Saying
Attorney Bradley P. Moss told Newsweek: "I see absolutely no reason to believe Clarence Thomas will step away from the bench until either he physically is unable to continue with his work, or he is assured that a handpicked successor will be confirmed without incident. No one should realistically believe that this current little rift between President Trump and Leonard Leo will have any impact on that in the long term."
Matthew Mangino, a former district attorney in Lawrence County, Pennsylvania, told Newsweek: "The cult of Donald Trump is stronger than any association, society or organization. If Trump wants Justice Alito and Thomas to move aside, they will oblige; if he wants them to stay, they'll stay, it is that simple.
"If conservatives expect these two justices to take a heroic stand against the president to save the Federalist Society, they are sadly mistaken. How can anyone anywhere expect principled action in this brewing controversy."
Richard Painter, a former ethics lawyer for President George W. Bush, told Newsweek that Thomas' future depended on several factors: "First, Justice Thomas may or may not want to retire and might not choose the optimal time for a conservative replacement anyhow.
"So even without Trump's spat with Fed Soc and conservatives, a lot of this depends on Justice Thomas and whether he is willing to retire and give up the enormous status that comes with holding a seat on the Court."
He continued: "As for the spat with the conservative legal movement, they have already put up with a lot from Trump, but they will insist on conservative justices in return (some people say there are only three reasons conservative lawyers support Trump, all three on the Supreme Court). So it all boils down to who Trump nominates.
"Justice Thomas, if he wants to retire, could announce his intention to retire in the near future, and then see who the White House plans to nominate. If the nominee is unsatisfactory, he would simply tell the GOP in the Senate that he is postponing retirement, and that would kill the nomination. I would expect a lot of behind-the-scenes negotiations between Justice Thomas and his allies, the Senate GOP and the White House over the next year or so. Same with Justice Alito."
Legal commentator David Lat wrote in his Substack on Monday: "I'm sticking to my prediction from last year that we won't see a SCOTUS retirement during Trump's term."
What Happens Next
It remains to be seen whether Thomas or any other justices will resign from the Supreme Court during Trump's term.
