WASHINGTON (AP) — 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 remain in control for decades to come.
Justices Clarence Thomas, 76, and Samuel Alito, 74, are the two oldest members of the court. Either or both might consider resigning knowing that Trump, a Republican, would nominate replacements who could be as much as 30 years younger.
“With President Trump and a Republican Senate, we could have a generation of conservative judges on the bench of the Supreme Court,” Sen. Lindsey Graham of South Carolina, the top Republican on the Senate Judiciary Committee, recently wrote on X.
That’s exactly what worries Christina Harvey, director of the progressive group Stand Up America. “The real key here is Trump prevention. If Trump wins again, he could consolidate right-wing control of the Supreme Court for decades,” Harvey said.
Still, the nation’s highest court has a lower profile than during the past two presidential campaigns. That’s despite an early summer ruling on presidential immunity that saved Trump from having to stand trial before the Nov. 5 election on charges of interfering in the 2020 election and other resulting decisions on abortion, guns , positive discrimination 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 released lists of potential Supreme Court nominees that helped secure enthusiastic support from social conservatives. Four years later, Biden went to South Carolina, with its large share of black Democratic primaries, and promised to appoint the first black woman to the Supreme Court.
Biden made good on his promise when he chose Judge Ketanji Brown Jackson in 2022.
Trump’s three nominees, Judges Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, strengthened the conservative majority that overturned Roe v. Wade in 2022, among other major decisions.
This ruling, colloquially known as Dobbs, has led to abortion bans or severe restrictions in many Republican-led states. But it has also fueled voter anger, leading to unexpected Democratic electoral success two years ago and putting abortion access on the ballot in 10 states this year.
Vice President Kamala Harris, her party’s White House candidate, has made reproductive rights a central issue of her campaign.
The court? Fewer.
While Harris has also embraced Biden’s proposed changes to the court, including 18-year terms for judges instead of lifetime terms and a binding ethics code, she doesn’t talk much about those proposals at her campaign events.
Getting a message across about 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 quite esoteric,” Badas said.
Additionally, Badas said, “Trump has a conservative court. He doesn’t need to highlight that as a problem. And Harris doesn’t want to overcommit, because once she becomes president, it’s very unlikely she’ll be able to get the appointments needed to make the court a more moderate court, let alone a liberal one.”
The oldest liberal judge is Sonia Sotomayor, who turned 70 in June. Even if she were to retire, leaving Harris to fill a vacancy, it would not change the ideological balance.
The Supreme Court is rarely the focus of presidential campaigns, which often focus on fundamental issues such as war and peace, the economy and security.
But in 2016, the sudden death of Justice Antonin Scalia rocked presidential politics, especially when the Republican-led Senate refused to consider President Barack Obama’s nomination of Merrick Garland to the Supreme Court, which was further divided 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 of the Supreme Court Institute at Chicago-Kent College . of the law.
The circumstances were somewhat similar to those in 1968, when Republican Richard Nixon’s law-and-order campaign targeted the liberal Warren Court and the nation knew that the next president would appoint Earl Warren’s successor as chief justice , Schmidt said.
Biden’s promise that led to Jackson taking her place on the court also had a historical analogy: 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.
