Lawmakers are looking ahead to the 2024 election as a pivotal opportunity to shape the future of the Supreme Court because of the possibility that conservative Justices Clarence Thomas, 75, and Samuel Alito, 73, could retire.
Democrats are worried that if Biden loses and the GOP wins the Senate majority, it could allow a GOP president to replace both men with younger conservatives who could rule far into the future.
“It’s critical. President Biden, who I feel confident will be reelected, needs to be able to put more judges on the bench, federal judges, including Supreme Court. It is absolutely critical that the Senate remain in Democratic hands,” said Sen. Debbie Stabenow (D-Mich.), who will retire at the end of next year.
Stabenow warned that if Republicans flip the White House and Senate and replace Thomas and Alito with younger conservatives, “it would be devastating for anyone who cares about privacy and their own personal freedom,” alluding to last year’s 6-3 Supreme Court opinion that overturned the constitutional right to an abortion and raised questions about other rights protected by the 14th Amendment.
Republicans also see high stakes in next year’s elections because of the court.
“Probably the next president will have a chance to appoint another member of the court,” said Sen. Josh Hawley (R-Mo.), a member of the Senate Judiciary Committee. “I expect that you’d see, over the course between now and the end of the next [presidential] term, probably another retirement or two.”
Hawley said replacing older conservatives such as Thomas and Alito with younger ones could create an “enduring majority,” but he cautioned that it’s tough to predict how a justice’s opinions might evolve over years on the Supreme Court.
“Republicans have had the majority of Supreme Court appointments for decades now and have not succeeded in getting a stable conservative majority on that court until very recently,” he said. “Does the next election matter for the court? I think it really does. I don’t know how much of a [conservative] majority it is. I don’t know how stable it is.”
Republican appointees now hold a 6-3 majority on the Supreme Court, with Chief Justice John Roberts, 68, emerging as the most likely swing vote since the retirement of Justice Anthony Kennedy in 2018.
Among the Democratic appointees, Obama-nominated Justice Sonia Sotomayor, 69, is the oldest. Justice Elena Kagan, another Obama appointee, is 63 and Ketanji Brown Jackson, whom President Biden put on the court, is 52.
The remaining three justices, Neil Gorsuch, 55, Brett Kavanaugh, 58, and Amy Coney Barrett, 51, were appointed by former President Trump.
The Supreme Court’s importance to the balance of political power in the United States was underscored once again Tuesday, when a 6-3 majority ruled to reject a legal theory that would have given state legislatures nearly unlimited power to set rules for federal elections, without judicial restraint.
It was another decision that showed justices don’t always march in line with the party of the president who appointed them. Roberts wrote the majority opinion, which was joined by the court’s three liberals as well as Coney Barrett and Kavanaugh. Thomas, Alito and Gorsuch dissented.
The conservative majority now on the court is likely to be there for some time, regardless of what happens with Alito and Thomas.
An analysis of the court’s projected composition by academics at three prestigious schools suggested the next time the majority of justices will be appointed by a Democrat is likely to be around 2065.
It found that the Democrats’ failure to confirm Obama-nominee Merrick Garland in 2016, combined with the death in 2016 of liberal Justice Ruth Bader Ginsburg, who was quickly replaced by Trump, “reduced its likely control of the court by about 19 years out of the next 100 and increased the number of years until the party takes control again by 36 years.”
The study caught the attention of judicial reform advocates on both sides of the ideological spectrum who say it further highlights the stakes of next year’s presidential and Senate races.
“I do think that the 2024 election is important. I do think Alito and Thomas will be getting up there in age, and there’s quite a real possibility that replacements for them could be in order in the next four-year presidential window,” said Brian Fallon, co-founder and executive director of Demand Justice, which seeks to restore “ideological balance and legitimacy” to the courts.
Fallon noted that prominent Republicans dropped hints about wanting to see Thomas retire while Trump was president.
“It’s hugely important to win the upcoming election, and I think the court will be more salient of an issue than ever,” he said. “It’s important to win the next election because if there is going be an opportunity to replace a Thomas or Alito, you don’t want to miss it by not winning a Senate race here or there and preventing us from filling a seat. But we shouldn’t delude ourselves into thinking that the court’s balance is going to be shifted anytime soon just by winning a few elections.”
Carrie Campbell Severino, the president of JCN, a conservative advocacy group that favors “the Founders’ vision of a nation of limited government” observed that “if the next president has the opportunity to appoint a Supreme Court justice, that person could easily serve another 30 years.”
She also questioned whether a conservate majority on the Supreme Court will really last as long as some studies have predicted. “It strikes me as pretty optimistic,” she said.
Senate Democrats have an uphill battle to keep their majority after the 2024 election; they have to defend three highly vulnerable seats in Ohio, Montana and West Virginia, while Republicans don’t have any seats in real danger of flipping.
Democrats also have to worry about the future of independent Sen. Kyrsten Sinema’s (Ariz.) seat, which now counts in the Democrats’ column for the purpose of determining the majority. She hasn’t said whether she will run for reelection.
The battle for the White House also is seen as a jump ball.
A Morning Consult poll published Tuesday showed Trump leading Biden in a hypothetical matchup for the first time, 44 percent to 41 percent.
The same poll showed Trump trouncing his nearest Republican rival, Florida Gov. Ron DeSantis, 57 percent to 19 percent, among 3,650 potential Republican primary voters nationwide.
A Morning Consult poll in April showed Biden leading Trump by 1 percentage point.