Constitutional law experts told FOX News Digital that the Supreme Court's conservative majority will remain in place regardless of the outcome of the Nov. 5 election.
With former President Donald Trump expected to take office again or Vice President Kamala Harris to become president, a topic of debate is whether the nation's high court will remain in its current state. However, it has not yet been formally raised by either candidate this past election cycle.
For years, politicians and media figures have called for the resignation of certain justices, including Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Elena Kagan, due to age and ethics controversies. . But experts say that while the person on the court may change, the balance of power will remain the same no matter who wins the Oval Office in November.
“People may change, so you can imagine, for example, if Harris wins, Justice Sotomayor might retire, or if the Republicans win, Justice Alito might retire,” said law professor Emanuel Heller. John Yu said. University of California, Berkeley, told Fox News Digital.
“The composition of the court's membership may change, but the ideological balance will not.”
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Constitutional experts say the Supreme Court's conservative majority will remain in place regardless of the outcome of the Nov. 5 election. (Robert Alexander/Getty Images)
Former President Trump appointed three judges during his term, maintaining a conservative majority, but President Biden only recently appointed liberal Justice Stephen Breyer to replace him after he announced his retirement in 2022. Appointed Judge Ketanji Brown Jackson.
“Of course, there could be unexpected vacancies on the court,” Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, told FOX News Digital. “But apart from that, if Trump wins and we have a Republican Senate, Thomas and Alito will retire and give their seats to much younger conservatives, and if Harris wins and we have a Democratic Senate, If that happens, Mayor Outside will retire and give up her seat.'' Her seat should be taken by a young Democrat. ”
Richard Epstein, the Lawrence A. Tisch Professor of Law at New York University School of Law, echoed Chemerinsky's prediction of retirement and told Fox News Digital that he expected retirement announcements from several judges. If he wins, he said he expects Thomas to announce his retirement, while Sotomayor said he would “act as soldierly as possible” in that case.
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“What you're seeing is a commitment coming up. And at this point, (Trump) is going to look at these judicial footprints and make sure that whatever he wants, he's going to have someone more reliable.” He's going to try to find out. The problem is you don't know what he wants,” Epstein said. “For the left,[Kamala Harris]couldn't think of anything that she disagreed with about Biden's actions.”
But Yu said he doesn't think the retirement incentives will make much of a difference after Nov. 5 anyway.
“If Trump wins, some conservative activists may be hopeful that older judges may retire and be replaced by much younger judges,” Yu said. “And, you know, we've seen some talk about how some people are hopeful that Justice Sotomayor could retire under President Biden and be replaced by a justice who is 20 years younger. Is it a conservative direction or a liberal direction?
“I don't think that kind of pressure will have much influence on judges,” Yu added. “So they're more insulated from politics than other government officials, and they don't have to listen to anyone's opinion on when they retire.”
With former President Donald Trump expected to take office again or Vice President Kamala Harris to become president, a topic of debate is whether the nation's high court will remain in its current state. However, it has not yet been formally raised by either candidate this past election cycle.
Mr. Yu also emphasized the importance of a possible appointment to the Circuit Court of Appeals. There is currently one vacancy on the Federal Court of Appeals, one candidate pending, and four other candidates awaiting future vacancies, according to Judiciary data.
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“If you want to advance the direction of the law, the appellate court is actually important,” Yu said. “Basically, the courts ultimately decide 99% of cases in the federal system, and less than 1% of cases make it all the way to the Supreme Court. So it's these appellate courts and circuit courts that really matter. It's something.” ”
For years, politicians and media figures have called for the resignation of certain justices, including Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Elena Kagan, due to age and ethics controversies. . (Photo by Alex Wong/Getty Images)
Yu said that while Biden and Trump have done a “good job” in filling these vacancies during their respective terms, “you'll see that's where the new president will have the biggest impact on the appellate courts. ” he said.
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“I think the bottom line is that we're going to look at the best of the Trump judges that either Biden or Obama appointed, and that's going to be the top choice for the Supreme Court,” Epstein said. said. “And Democrats are more likely to elect women and more likely to elect minorities.”
