Just months before Election Day, the question of whether President Trump will get to select a third Supreme Court justice hangs over the final weeks of the court’s term.
Speculation over a possible vacancy has focused in recent years on the prospect of Justice Clarence Thomas exiting while Republicans control the White House and Senate, and alternatively on the health of the court’s aging liberal bloc.
Top Senate Republicans drew fresh attention to the bench recently when they said they would confirm a new justice if given the chance despite 2020 being an election year, in an apparent reversal of their rationale for blocking President Obama’s nominee late in his second term.
Such statements, including by Sen. Lindsey Graham (R-S.C.) earlier this month, revived the unsubstantiated whisper campaign that Thomas was considering retiring now to allow Republicans to replace him with a like-minded, though younger, jurist to lock down conservatives’ 5-4 majority.
Since Trump won the 2016 election, rumors of Thomas’s departure have swirled, particularly after the retirement of former Justice Anthony Kennedy in June 2018 cleared the way for Trump’s second Supreme Court nominee.
Thomas, 71, has repeatedly denied the claims. “I’m not retiring,” he said adamantly last spring while speaking at Pepperdine University.
According to more than a half dozen Washington lawyers, friends and former Thomas clerks interviewed by The Hill, the justice has no plans to leave the bench.
“He will die on the court,” said Thomas’s close friend Armstrong Williams.
The latest chatter comes as Thomas enjoys a moment in the spotlight: a documentary about his life just aired on PBS, the normally reticent justice drew plaudits for his sharp questions during telephonic oral arguments and former Thomas clerks have been ascendant in the Trump era.
“He’s just warming up,” Williams said. “He still feels young, and there’s a lot of work to do.”
Helgi C. Walker, a partner at Gibson Dunn and a former Thomas clerk, said her onetime boss continues to wield his principled views to “drive the debate about key issues.”
“I have no reason to think the justice is going anywhere,” she said.
Thomas, who has served on the bench since 1991, is the longest-tenured justice, but only the third oldest. He is younger by a decade or more than two of the court’s reliably liberal justices, Ruth Bader Ginsburg and Stephen Breyer.
The justices’ age and health has come into sharper focus amid the coronavirus pandemic, as six of the nine justices are age 65 or older, placing them in a population that the Centers for Disease Control and Prevention considers to be at risk for serious illness from the coronavirus.
The older justices are Ginsburg, 87; Breyer, 81; Thomas, 71; Samuel Alito, 70; and John Roberts and Sonia Sotomayor, both 65. Elena Kagan is 60, and Trump’s two Supreme Court picks, Brett Kavanaugh and Neil Gorsuch, are 55 and 52, respectively.
As the oldest justices on the bench, Ginsburg and Breyer have faced recurring questions about retirement. When asked, Ginsburg has often replied that she would continue working on the court “as long as I can do it full steam.”
Ginsburg, who is considered the leader of the court’s liberal wing, has survived a total of four bouts with cancer since being appointed to the Supreme Court by former President Clinton in 1993.
Most recently, she underwent treatment earlier this month for a benign gallbladder condition. While recovering in the hospital, Ginsburg called in to oral arguments, which the Supreme Court held remotely by teleconference as part of its response to the coronavirus pandemic.
Ginsburg was expected to return to Johns Hopkins Hospital in Baltimore over the following weeks for follow-up outpatient visits and to have a gallstone non-surgically removed, a court spokeswoman said.
Earlier this term, Ginsburg missed a day of oral arguments in November due to a stomach bug but returned to work later that week. She missed oral arguments for the first time during the previous court term while recovering from surgery to remove two cancerous nodules from her lung.
The justice sounded a positive note earlier this year about the state of her health when she announced publicly for the first time that she was cancer-free. But her recurring health episodes have caused some to worry about her longevity on the bench.
Neither Ginsburg nor Breyer are expected to retire while the Republican Party is in control over their successors.
According to the legal industry website Above The Law, both Ginsburg and Thomas have hired at least two clerks so far for next term, and Breyer has hired a clerk for the term that begins October 2021.
A spokeswoman for the Supreme Court did not respond to a request for comment.
Studies have shown that justices are more likely to retire when the White House is held by the same party as the president who appointed them, sometimes referred to as a “strategic retirement.”
Over nearly the past 50 years, “strategic retirements have been more the rule than the exception,” Scott Lemieux, a political science professor at the University of Washington, wrote in a Washington Post op-ed last year.
“The only justices since 1968 who resigned while still alive and with a president they weren’t positively disposed to on ideological or partisan grounds were [William] Brennan and Thurgood Marshall, who waited as long as they could during a 12-year run of Republican control of the White House but were ultimately forced off the court by serious health issues,” Lemieux wrote.
Both Ginsburg and Breyer have signaled that the ideological makeup of the court they would leave behind is a factor in their thinking.
In a recent interview with Axios, Breyer said that who the president is and the court’s future ideological balance were “not totally irrelevant” considerations for justices weighing when to leave the bench.
But when asked about retirement, Breyer, a Clinton nominee, said, “I don’t really think about it,” and added, “I enjoy what I’m doing.”
Breyer has had no known health scares other than a fractured shoulder he sustained in a bicycle accident in 2013.
The other justices, nominated by Obama and former President George W. Bush, as well as Trump’s two picks, are not often mentioned in terms of possible near-term vacancies.
Even if no surprise vacancy opens up on the bench, the Supreme Court may well be a factor in many voters’ minds come November.
In coming weeks, the court is expected to issue rulings that could determine the fate of Trump’s tax returns, LGBT rights in the workplace and the deportation status of nearly 700,000 young undocumented immigrants.