Gaming Out The Future of Supreme Court Vacancies

Since Ronald Reagan, every President of the United States has seen at least two successful nominations to the Supreme Court. Reagan had three; both Bushes, Bill Clinton, and Barack Obama have each filled two vacancies. Donald Trump, only one hundred days into his first term in office, has already had one successful nomination, the only time in recent history that has occurred.

And Trump could soon get another chance to leave his mark on the Supreme Court. Rumors are swirling that Anthony Kennedy, the moderate swing vote on the Court and eighty years old, could retire this summer. If he does, and Trump has the opportunity to make a second nomination, it will be an historic event for a president to fill two seats on the Court so early in his term.

As I’ve said before, this is when the real battle for the future of the Supreme Court will take place. Gorsuch’s nomination merely replaced one conservative—Antonin Scalia—with another. But if Trump replaces Kennedy with another name from his list of potential justices, any of whom would be a solid conservative pick, the current balance of power would shift definitively toward the Right.

And it might not end there. Ruth Bader Ginsburg, the leader of the current Court’s liberal wing, is 84 years old and has suffered several health issues in recent years, including cancer. She would certainly like to delay retirement until the next liberal president is elected, whether in four or eight years, but if any justice is likely to be forced into retirement due to worsening health problems, it would be her. Stephen Breyer, another veteran liberal, is currently 78 years old, and may well decide to leave the Court before another Democrat is elected, particularly was Trump to win reelection in 2020.

In contrast, with Scalia’s death, Clarence Thomas is now the oldest conservative member of the Court, who at 68 is still fairly young by judicial standards.

With his first Supreme Court nomination, Trump has all but guaranteed the current delicate balance of power between conservatives and liberals. With his next pick, should Kennedy indeed choose retire within the next year or two, Trump has the opportunity to give the Court its first fully conservative majority since the early 1930’s. And, should more vacancies arise after that, he could well solidify a conservative supermajority on the Court that would last for decades to come.