The upcoming election, less than a week away, could reshape the U.S. Supreme Court — or not, depending on retirements, deaths, or other unforeseen events. The only certainty is political struggle.
Depending on who wins the presidential election, and control of the Senate, the current 6-to-3 conservative supermajority could remain the same, be trimmed to 5-to-4, or expand to an even larger and more lopsided conservative majority.
The public, for the most part, understands that if there is a Supreme Court vacancy, the president’s nominee will generally reflect the president’s views. But, there is a genuine possibility that if the Senate is controlled by the opposition party, the open seat will remain unfilled—not for months, but for years.
Indeed, there is also a real possibility that lower court seats will go unfilled, unless there is significant backroom horse-trading. In short, with power split between the White House and the Senate, there could be unprecedented gridlock on judicial nominations that extends all the way up to the Supreme Court and down to the appellate and even district courts.
'The Merrick Garland treatment'
In recent years, Republicans have wielded their power in unprecedented ways to prevent a president's Supreme Court nominee from being confirmed. When conservative Justice Antonin Scalia died unexpectedly in 2016, Senate Republican leader Mitch McConnell immediately announced that no Obama nominee would be considered at all prior to the election that was nearly a year away.
Obama went ahead anyway, figuring that old norms would prevail if he nominated a respected and centrist judge, someone acceptable to both Democrats and Republicans. Judge Merrick Garland seemed the best fit, but Garland didn’t even get a hearing, much less a vote. Four years later, after the death of Justice Ruth Bader Ginsburg, Senate Republicans put the pedal to the metal just weeks before the election, rapidly pushing through the confirmation of judge, now Justice, Amy Coney Barrett.
This year, conservatives are just as determined to keep or expand their 6-to-3 Supreme Court majority. So what happens if Kamala Harris is elected president, but the Senate flips to Republican control?
“We’ll give you the Merrick Garland treatment,” says conservative scholar Josh Blackman, a professor at South Texas College of Law, Houston. “We’ll have the seat open for three or four years,” he says.
A Trump win and a Democratic Senate
Would the reverse happen if Trump is elected but the Senate remains in Democratic hands?
Democrats like to think of themselves as “more responsible” than Republicans, but the pressures would be enormous to do unto the Republicans what they did to the Democrats.
Republicans “essentially crossed the Rubicon” in 2016 with the Garland nomination, says Harvard law professor Noah Feldman, who has written extensively about the court's history.
"Given that we’re in a world of…controversial revolutionary decisions, neither party would be likely to give a positive vote to a nominee of the president from the opposite party," he said.
NYU law professor Bob Bauer, who served as White House counsel for two years in the Obama administration, notes that institutional norms aren't necessarily permanent.
The whole notion that "a certain process has to be respected, regardless of the potential impact on one party or another," he says. "It's not a norm if it doesn’t command general adherence anymore."
So what if Trump is elected, and the Senate flips, as expected, to Republican control? The only thing then standing between nominating and confirming a new Trump-appointed justice would be two moderate Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine. If the Republican margin in the Senate is 52-48, their votes aren't needed; JD Vance would cast the tie-breaking vote as vice president even if Murkowski and Collins voted against the nominee.
So, what recourse would the Democrats have in a situation like that? How would they fight a Trump nomination? After all, there is no filibuster anymore to block a vote. Democrats abolished the filibuster for lower court nominations in 2011 in response to Republicans routinely blocking judicial nominations. Republicans then abolished the filibuster for Supreme Court nominations in 2017 after Trump was elected and nominated Neil Gorsuch to fill the seat that GOP leader McConnell had held open after Scalia's death.
Democrats are only candid about this when speaking not for attribution. As one put it, “We would largely be left with the politics of personal destruction, investigating every aspect of a nominee’s life to find something that is disqualifying."
Unforeseen circumstances
Of course, right now, there is no vacant seat at the Supreme Court.
Although the deaths of Justices Scalia and Ginsburg prove that nothing is certain, they were far older than any member of the current court. Scalia was just days shy of turning 80 and Ginsburg was 87. In contrast, the oldest members of the current court are also among its most conservative. Justice Clarence Thomas is 76 and Justice Samuel Alito is 74, followed by liberal Justice Sonia Sotomayor, 70, and Chief Justice Roberts, 69.
Some of the most politically active conservative thinkers would like to see Thomas and Alito step down for younger conservative judges who could serve for many decades longer and move the conservative needle even further to the right. They see as their "farm team" the ultra-conservative Fifth Circuit Court of appeals, populated with former Thomas and Alito clerks whose decisions are often reversed even by the current conservatives on the Supreme Court, including the men they once clerked for.
But those who know Thomas and Alito well are adamant that neither man would leave the court at this point. Several NPR spoke to would only speak candidly on condition of anonymity. “What would he do, go home and fly flags with his wife at the beach?” said one Alito ally, adding that the court is “Alito’s life.” As for Thomas, his friends and former clerks say he would see retirement as “caving into his critics” and being “driven off the court.”
So if there are no retirements or unexpected health crises, the court could well remain as is.
A period of dysfunction
That leaves the lower courts, which get less attention than the Supreme Court, but decide many more cases. During the last year of the Obama administration, when Republicans controlled the Senate, not one nominee to a regional appeals court was confirmed, though 10 trial court judges, a tiny fraction of vacancies, were. The result was that on the day Trump was sworn in, there were 105 judicial vacancies to fill.
Professor Blackman expects that if Harris is elected and Republicans control the Senate, something similar could happen for a full four years.
“They may just stop, confirming” any lower court judges, he says.
Other conservatives think that is far too dire a prediction. They expect that especially in states where both senators are Democrats, there would be horse-trading and a deal that allocates judicial seats — basically, the Democrats get one, for example, for every two or three GOP nominees.
Harvard's Feldman says he sees no light at the end of the tunnel when the parties are split, with a president of one party, and a Senate controlled by the other party. But dysfunction, he thinks could lead to change … eventually.
“We might have what I call the incredible shrinking Supreme Court,” he says, adding that “if we have divided government and we have justices naturally retiring or dying and they don’t get replaced, we could go down to eight, to seven, to six and eventually the public might start to notice and complain about it, and then some sort of compromise formation might be reached.” That said, he acknowledges a process like that could take 15 or 20 years.
If he's right, the end of dysfunction is a long way of off.
In the meantime, Justice Clarence Thomas, the most senior and seasoned Supreme Court justice, provides a lesson of longevity and power. If he serves another three years, he will break Justice William O. Douglas’ 36-year record for length of service on the court. Indeed, even sooner, when the next president is sworn in this January, Thomas will be making decisions that directly effect his 11th presidential administration.
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