Prepare for Massive Turnover on the Supreme Court in the Next Four Years

Ronald L. Feinman is the author of Assassinations, Threats, and the American Presidency: From Andrew Jackson to Barack Obama (Rowman Littlefield Publishers, 2015).  A paperback edition is now available.

The Supreme Court of the United States has tremendous power and impact on all Americans. The future membership of the Court will likely be determined in the next term, and it could be a massive change.

The three youngest of Justices, Elena Kagan (appointed by Barack Obama in 2010), Neil Gorsuch (appointed by Donald Trump in 2017), and Brett Kavanaugh (appointed by Trump in 2018), are 60, 53 and 55, respectively, seem in good health, and are likely to be on the Court for a long time.

Much attention is, of course, paid to the oldest member, Ruth Bader Ginsburg (age 87), who has served on the Court for 27 years since being appointed by Bill Clinton, and has had five bouts with cancer (to date recovering from all and continuing to be able to work).  Democrats have prayed for Ginsburg to stay healthy enough to remain on the Court in the hope that Joe Biden becomes President in 2021.  It is imagined that she will retire next year if Biden is President, but stay on, if she is able to, if Trump is reelected.

But then, there is also Stephen Breyer (age 82), appointed by Bill Clinton, who has been on the Court for 26 years. While he is in good health, it seems likely that he will leave in the next presidential term.  If both Ginsburg and Breyer leave the Court with President Biden in office, it would preserve a 4 Justice liberal bloc that has occasionally drawn an ally from the more conservative side, but if Trump replaces them, then the Court would become much more right wing, with a 7-2 conservative majority.

But this is not the end of the issue of the future Court as, realistically, there might be up to four other Justices departing by 2024.  This would include Clarence Thomas (age 72), appointed by George H. W. Bush, and Samuel Alito (age 70), appointed by George W. Bush, with Thomas on the Court for 29 years, and Alito having served 14 years.  There have been rumors that either or both of them might leave the Court now, so that Donald Trump can replace them, but apparently as the summer moves on toward a regular October opening, it seems not to be happening.  The point is that if either or both left the Court, Trump could replace them with younger, more ideological conservatives, while if Joe Biden were able to replace them, the Court would move substantially to the left.

But then, we also have Sonia Sotomayor (age 66), on the Court for 11 years after appointment by Barack Obama. It has been publicly reported that she has problems with diabetes, which might, in theory, cause her to resign from the Court in the next term.  Sotomayor has been a Type 1 diabetic since age 7, and  had a paramedic team come to her home in January 2018 to deal with an incident of low blood sugar.  If Trump were able in the next Presidential term to replace her, the conservative majority could be as strong as 8-1 by 2024.

And then, finally, we have Chief Justice John Roberts (age 65), who has led the Court for 15 years since appointment by George W. Bush. Roberts is as much of a “swing vote” as there is among the conservative Justices, surprising many with some of his decisions and utterances regarding Donald Trump.  The problem is that Roberts has had health issues involving seizures, in 1993, again in 2007, and most recently in 2020.  In 2007, after two years as Chief Justice, Roberts collapsed while fishing alone on a pier at his summer home in Maine, fortunately not falling into the water and drowning.  In June 2020, he fell and hit his forehead on the sidewalk, receiving sutures and an overnight hospital stay. In this case, a seizure was ruled out as the cause of the fall, but the possibility that Roberts might leave the Court has become a subject of speculation.

So while the future of these six Supreme Court Justices is for the moment just speculation, the odds are good that two or more might leave the Court, and potentially as many as six, which gives either Joe Biden or Donald Trump the ability to transform the ideology of the majority of the Court until mid-century.

So the Presidential Election of 2020 is not just about who might be in the Oval Office, or which party might control the US Senate, but also a potential revision of the Supreme Court’s role in American jurisprudence, and its impact on 330 million Americans.