WASHINGTON – Conservatives already have a supermajority on the Supreme Court as a result of Donald Trump's presidency. If Trump wins a second term, the right side of the court could retain control for several more decades.
Justices Clarence Thomas, 76, and Samuel Alito, 74, are the two oldest members of the court. Either, or both, could consider stepping down knowing that Trump, a Republican, would nominate replacements who might be three decades younger.
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“With President Trump and a Republican Senate, we could have a generation of conservative justices on the bench in the Supreme Court,” South Carolina Sen. Lindsey Graham, the top Republican on the Senate Judiciary Committee, recently wrote on X.
That’s exactly what worries Christina Harvey, executive director of the progressive group Stand Up America. “The real key here is Trump prevention. If Trump wins again, he could solidify right-wing control of the Supreme Court for decades,” Harvey said.
Yet the nation's highest court has a lower profile than it did in the past two presidential campaigns. That's despite an early summer ruling on presidential immunity that insured that Trump would not have to stand trial before the Nov. 5 election on charges of interference in the 2020 election and other consequential decisions on abortion, guns, affirmative action and the environment.
Both Trump and Democratic President Joe Biden used the prospect of Supreme Court nominations, which require Senate confirmation, to reassure key constituencies on their way to the White House.
In 2016, Trump put out lists of potential Supreme Court nominees that helped secure the enthusiastic backing of social conservatives. Four years later, Biden went to South Carolina, with its large share of Black Democratic primary voters, and pledged to name the first Black woman to the Supreme Court.
Biden followed through on his promise when he chose Justice Ketanji Brown Jackson in 2022.
Trump's three nominees, Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, cemented the conservative majority that in 2022 overturned Roe v. Wade, among other major decisions.
That ruling, colloquially known as Dobbs, has led to abortion bans or severe restrictions in many Republican-led states. But it also has fueled voter anger that produced unexpected Democratic electoral success two years ago and put abortion access on the ballot in 10 states this year.
Vice President Kamala Harris, her party's White House nominee, has made reproductive rights a central theme of her campaign.
The court? Less so.
While Harris also has embraced court changes put forward by Biden, including 18-year terms for justices instead of lifetime tenure and a binding ethics code, she doesn't talk much about those proposals at her campaign events.
Delivering a message on abortion is simple and direct, said Alex Badas, a political science professor at the University of Houston who has studied the court and campaigns. “The court is kind of esoteric,” Badas said.
In addition, Badas said, “Trump has a conservative court. He doesn’t need to bolster that as an issue. And Harris doesn’t want to overcommit because once she becomes president, it’s very unlikely she’s going to be able to get the appointments needed to make the court a more moderate court, let alone a liberal court.”
The oldest liberal justice is Sonia Sotomayor, who turned 70 in June. Even if she were to retire, giving Harris a vacancy to fill, it would do nothing to alter the ideological balance.
The Supreme Court rarely takes center stage in presidential campaigns, which tend to focus on fundamental issues of war and peace, the economy and security.
But in 2016, the sudden death of Justice Antonin Scalia delivered a jolt to presidential politics, especially once the Republican-led Senate refused to consider President Barack Obama's nomination of Merrick Garland to the high court, which was otherwise split between four Democratic liberal appointees and four Republican conservatives. Garland is now Biden's attorney general.
“2016 was exceptional because not only did you have a vacancy, but there was actually a vacancy that could crucially move the court in one direction or another," said Christopher Schmidt, co-director at the Supreme Court institute at the Chicago-Kent College of Law.
The circumstances were somewhat similar to 1968, when Republican Richard Nixon's “law-and-order” campaign targeted the liberal Warren Court and the nation knew the next president would appoint Earl Warren's successor as chief justice, Schmidt said.
Biden's pledge that led to Jackson taking her place on the court also had a historical analogue, Republican Ronald Reagan's campaign promise to appoint the first woman. Eight months after Reagan took office, Sandra Day O'Connor took her judicial oath.