The Supreme Court’s conservative majority will be maintained regardless of the Nov. 5 election results, constitutional law experts tell Fox News Digital.
With the anticipation of either another former President Donald Trump presidency or a Vice President Kamala Harris presidency, whether the country’s high court remains in its current state is a topic of debate that has yet to be formally broached by either candidate this past election cycle.
Over the years, both politicians and media personalities have called for the resignation of particular justices, including Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor and Elena Kagan, over concerns about their ages and ethical controversies. However, experts say that while the individuals on the court may change, the power balance itself will remain intact no matter who wins the Oval Office in November.
‘People might change. So, for example, if Harris were to win, Justice Sotomayor might retire. Or if a Republican were to win, then you could imagine Justice Alito retiring, perhaps,’ John Yoo, the Emanuel Heller Professor of Law at the University of California at Berkeley, told Fox News Digital.
‘The makeup of the individuals of the Court would change possibly, but the ideological balance wouldn’t change.’
Former President Trump named three justices to the Court during his term, preserving the conservative majority, while President Biden most recently named Justice Ketanji Brown Jackson to the Court in 2022, replacing liberal Justice Stephen Breyer after he announced his retirement.
‘Of course, there can be unforeseen vacancies on the Court,’ Erwin Chemerinsky, dean at UC Berkeley Law, told Fox News Digital. ‘But apart from that, I expect if Trump wins and there is a Republican Senate, Thomas and Alito will retire to let their seats be taken by much younger conservatives. And if Harris wins and there is a Democratic Senate, Sotomayor will retire to let her seat be taken by a younger Democrat.’
Echoing Chemerinsky’s retirement predictions, Richard Epstein, the Laurence A. Tisch professor of Law at NYU School of Law, told Fox News Digital he also expects retirement announcements from several justices, saying he foresees Thomas announcing his retirement if Trump were to win, while Sotomayor would ‘soldier on as long as she is able’ in that case.
‘What you’re going to see is an appointment coming, and I think at this point, [Trump is] going to look at these judicial tracks and try to get somebody who’s more reliable in whatever it is he wants. The problem is you don’t know what he wants,’ Epstein said. ‘With the left, [Kamala Harris] couldn’t think of anything that Biden did that she disagrees with.’
Yoo, however, noted he does not believe the push for retirements would make much of a difference after Nov. 5 either way.
‘I’m sure that if Trump were to win, you will see some conservative activists hope that older justices might retire, replaced by a much younger justice,’ Yoo said. ‘And, you know, I’ve seen stories that some people are hoping Justice Sotomayor would even retire under President Biden so that she could be replaced by someone who’s 20 years younger, as a way of trying to cement control of those seats in a conservative or liberal direction.’
‘I don’t think pressure like that has really much effect on the justices,’ Yoo added. ‘I mean, they’re insulated from politics more than any other members of the government. And they don’t have to listen to anybody when it’s about when they choose to retire.’
Yoo also emphasized the importance of potential appointments to the Circuit Courts of Appeals. There is currently one vacancy in the federal appellate courts, with one nominee pending and four other nominees pending for future vacancies, according to judiciary data.
‘If you want to advance a direction in the law, it’s really the appellate courts,’ Yoo said. ‘They’re the ones that basically finally decide 99% of the cases in the federal system and only 1% of the cases or less make it ever to the Supreme Court. So those appellate courts, circuit courts are the ones that are really important.’
Yoo said both Biden and Trump did ‘a good job’ of filling those vacancies during their respective terms, but ‘that’s where you will see the biggest impact of a new president is on those appellate courts.’
‘I think that the bottom line is, look at the best of the Trump judges, appointees by either Biden or Obama and that’s going to be the pools from which the Supreme Court justices are going to be selected,’ Epstein stated. ‘And the Democrats are more likely to pick a woman, more likely to pick a minority.’
