Coaxing aging Supreme Court justices to give up their power and status during a window of political opportunity can be a delicate endeavor.

Jonathan Swan

By Charlie SavageMaggie Haberman and Jonathan Swan

Nov. 9, 2024

Updated 4:20 p.m. ET

With Republicans set to regain control of the White House and the Senate, the spotlight has turned to the Supreme Court and whether the two oldest justices may step down, paving the way for President-elect Donald J. Trump to lock down a conservative supermajority for years.

But the open speculation about the justices, Clarence Thomas, 76, and Samuel A. Alito Jr., 74, has prompted fissures in the conservative world, eliciting a striking rebuke from Leonard Leo, a leader of the Federalist Society and arguably the most powerful figure in the conservative legal movement.

“No one other than Justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed and frankly just crass,” Mr. Leo said in a statement on Friday.

Mr. Leo played a leading role in recommending judicial nominees to Mr. Trump in his first term. But in the years since Mr. Trump left office, MAGA-style Republicans who believe Democrats are an existential threat to the country — sometimes called the New Right — have come to disparage Mr. Leo and the Federalist Society as symbols of what they believe was an insufficiently aggressive legal approach that sometimes held Mr. Trump back.

Confirming Supreme Court justices has become increasingly partisan, making the window to do so very slim. In 2016, Senate Republicans, led by the majority leader at the time, Mitch McConnell, refused to hold a vote on any nominee by President Barack Obama, a Democrat, to fill a vacancy.

In January, when Mr. Trump assumes office, Republicans will hold the majority in the Senate, likely with a few seats to spare, giving the White House broad latitude to select particularly conservative nominees. It will diminish any moderating influence that the most centrist members of the Republican caucus, like Senators Lisa Murkowski of Alaska and Susan Collins of Maine, might otherwise have had.

Against that backdrop, many legal conservatives, both in public and in private, have wondered whether Justices Alito and Thomas will step down.

“My guess is that both Justice Thomas and Justice Alito will decide to retire over the next 18 months,” Ed Whelan, a conservative legal commentator who has been critical of Mr. Trump but supportive of his judicial nominees, said in an interview. “It’s a golden opportunity to extend their legacies for decades.”

It is a sentiment echoed by other conservatives, including Mike Davis, a former top aide for Republicans on the Senate Judiciary Committee who now runs a legal advocacy group and is a favorite of Mr. Trump.

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“Prediction: Justice Sam Alito is gleefully packing up his chambers,” he wrote on social media after the election was called for Mr. Trump.

Coaxing aging justices to give up their tremendous power and status can be a delicate and complicated task, and openly suggesting it is time to retire risks backfiring by making them more resistant to the idea. Overt discussion that either justice might interpret as an effort to nudge them toward the door provoked an unusual response from Mr. Leo.

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“Justices Thomas and Alito have given their lives to our country and our Constitution, and should be treated with more dignity and respect than they are getting from some pundits,” Mr. Leo added in his statement.

In his own statement, Mr. Davis shot back: “It’s amusing to watch D.C. conservatives pretend to care about Supreme Court justices now, after they sat on the sidelines with all the money during the years of vicious attacks against conservative justices.”

Justices Thomas and Alito are considered the two most conservative members of the court. Both are Republican appointees: Justice Thomas, the court’s longest-serving member, was appointed in 1991 by President George H.W. Bush, and Justice Alito, the author of the landmark 2022 opinion that ended a constitutional right to an abortion, was appointed in 2006 by President George W. Bush.

Justices have lifetime appointments, so presidents tend to select candidates who are in their mid-50s or younger in hopes they will have a long tenure. Roughly two dozen of the appeals court judges Mr. Trump appointed in his first term are still young enough to be in the range of prospects. Early speculation among some conservatives have focused on several names in particular.

Notably, at least four of the names would, if appointed, become the first Supreme Court justice of Asian descent.

One is Judge Amul R. Thapar of the U.S. Court of Appeals for the Sixth Circuit, the child of Indian immigrants. Usha Vance, the wife of Vice President-elect JD Vance, clerked for him when he served as a district court judge.

Another is Judge Neomi Rao of the U.S. Circuit Court of Appeals for the District of Columbia, whose parents also immigrated from India. She was a clerk to Justice Thomas and worked in the Trump White House before joining the bench.

A handful of names have emerged from the Fifth Circuit, known as the most conservative federal court in the country in part because of Mr. Trump’s appointments. They include Judge James Ho, a native of Taiwan and another former clerk to Justice Thomas; Judge Andrew Oldham, a former Alito clerk and general counsel to Gov. Greg Abbott of Texas; and Judge Kyle Duncan, who previously represented conservative clients in cases like whether corporations may refuse to provide contraception coverage to employees based on owners’ religious beliefs.

Judge Ho, a former Texas solicitor general, has developed a reputation for advancing culture war views. At a Federalist Society conference, for instance, he vowed never to hire clerks from Yale Law School to punish the institution for what he said was its toleration of “cancel culture.”

Other prospects include Judge Patrick J. Bumatay of the Court of Appeals for the Ninth Circuit, who is of Filipino descent, and two young appointees in the district courts in Florida, Judge Kathryn Mizelle, a former Thomas clerk, and Judge Aileen S. Cannon.

Judge Mizelle struck down a requirement that people wear masks on airplanes during the coronavirus pandemic, and Judge Cannon is best known for dismissing Mr. Trump’s indictment for hoarding classified documents and obstructing government efforts to retrieve them.

It is not yet clear whom Mr. Trump will rely upon in making recommendations for appointments to the Supreme Court or appeals court vacancies.

When Mr. Trump took office in 2017, Mr. Leo and Mr. Trump’s first White House counsel, Donald F. McGahn II, another Federalist Society stalwart, played central roles in selecting his nominees. But Mr. Leo’s relationship with Mr. Trump has since become deeply strained.

By the end of his first term, Mr. Trump appointed three Supreme Court justices and 54 appeals court judges, an extraordinary record.

But should both Justices Thomas and Alito decide to retire, Mr. Trump would be in the rare position of having single-handedly appointed a controlling majority of the court.

Charlie Savage writes about national security and legal policy. More about Charlie Savage

Maggie Haberman is a senior political correspondent reporting on the 2024 presidential campaign, down ballot races across the country and the investigations into former President Donald J. Trump. More about Maggie Haberman

Jonathan Swan is a political reporter covering the 2024 presidential election and Donald Trump’s campaign. More about Jonathan Swan

See more on: Republican Party, U.S. Senate, U.S. Supreme Court, Samuel A. Alito Jr., J.D. Vance, Donald Trump

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