No one tells a Supreme Court Justice when to retire. But there are currently two retirement dramas under way at the Court—one semi-public and the other semi-private—and they both have the potential to reshape the meaning of the Constitution for decades.
The public story is that of Ruth Bader Ginsburg, the Court’s senior liberal. Late last year, she fell and broke three ribs and, when she was being treated, doctors discovered that she had lung cancer, her third bout with cancer. She underwent surgery, apparently successfully, and the Court released word that she would need no further treatment. But, in January, she missed oral arguments for the first time in twenty-five years on the Court, and there is no guarantee that she will be there when the Justices next hear cases, on February 19th. Still, the retirement drama regarding Ginsburg is straightforward. She will hang on for as long as she can, in the hopes that a Democratic President will appoint her successor after the 2020 election.
The more complex drama involves Clarence Thomas, who is seventy years old and the longest-tenured Associate Justice on the Court. With fifty-three Republicans now in the Senate (and no filibusters allowed on Supreme Court nominations), President Trump would have a free hand in choosing a dream candidate for his conservative base if Thomas were to retire this year. The summer of 2019 would seem an ideal time to add a third younger conservative to the Court (along with Neil Gorsuch, who is fifty-one, and Brett Kavanaugh, who is fifty-four). It’s true that Mitch McConnell, the Senate Majority Leader, would likely violate his Merrick Garland rule and try to push through a nominee in 2020, an election year, but 2019 would be much easier to navigate. So, many conservatives are asking, why shouldn’t Thomas leave now?
It seems that the President may have had the same thought. Trump has shown unusual solicitude for Justice Thomas and his wife, Ginni, a hard-right political activist. The President and the First Lady had the Thomases to dinner, and then Trump welcomed Ginni and some of her movement colleagues to the White House for an hour-long discussion. Even in a conservative White House, Thomas and her team presented some outré ideas, like opposing same-sex marriage and questioning the ability of women to serve in the military. But the President listened as the group asked that more of their allies be given jobs in the Administration. Trump rarely engages in this kind of cultivation, and it’s reasonable to speculate that he’s trying to persuade the Justice that his seat would be in good hands if he decided to leave.
But will Thomas retire? Over the years, he has made little secret of the fact that he doesn’t enjoy the job very much. With a conservative future of the Court secure, why wouldn’t he call it a day after twenty-eight years? Because, according to his friends, he feels an obligation to continue doing the job for as long as he is able, regardless of the political implications of his departure. Of course, no one except Thomas knows for sure what he will do, and that leaves his decision open to speculation.
There seems little doubt, however, about what would happen if either he or Ginsburg leaves in the next year or two. The President would likely nominate as a replacement Amy Coney Barrett, a forty-seven-year-old judge on the Seventh Circuit. A former professor at Notre Dame Law School, Barrett was nominated to the appeals court by Trump, in 2017, and she has already been considered for a Supreme Court seat—the one that went to Kavanaugh. Her politics appear even more conservative than Kavanaugh’s or Gorsuch’s; she has been open in her disdain for the concept of abortion rights for women. She is a devout Catholic and has, in the past, expressed a willingness to overturn precedent, which some observers think makes her even more certain than Kavanaugh and Gorsuch to vote to overturn Roe v. Wade. (Last week, both Justices voted in favor of enforcing Louisiana’s abortion-clinic law, which would restrict access to the procedure; Chief Justice John Roberts’s vote, joined by those of the Court’s four liberals, blocked it.)
Barrett’s personal story is ready-made to weather a Supreme Court confirmation battle. She has seven children, two of them adopted from Haiti and one with special needs. She clerked on the Supreme Court, for Antonin Scalia, and won accolades from her students at Notre Dame. Whatever views she has expressed in the past, she looks like a difficult nominee to defeat, particularly with a loyal Republican majority in the Senate.
As President Trump contends with a combative and energized Democratic majority in the House of Representatives, it’s easy to forget the magnitude of the power that he still wields. Even during the 2016 campaign, he understood the power of judicial appointments to command the support of his political base and to establish a legacy as President. With another Supreme Court vacancy, or two, Trump’s record and influence on the future of the country will look even more secure.