What Trump’s victory means for the Supreme Court

• With Trump’s victory and upcoming GOP control of the Senate, the Supreme Court looms large.
• Trump appointed a third of the current Supreme Court in just one term.
• “If I’m Clarence Thomas, I’m thinking now is a good time to retire,” one expert told Business Insider.

During Donald Trump’s first term as president, he appointed three justices to the Supreme Court, giving it a 6-3 conservative supermajority.

His Supreme Court appointees — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — later voted to overturn Roe v. Wade, which for nearly 50 years had afforded women a constitutional right to an abortion.

With Trump having won a second term in office, he now has the potential to further shape the court in ways that no other president has done in modern times.

Trump’s second term gives Thomas and Alito a chance to retire

Republicans won a majority in the US Senate alongside Trump’s victory, which means that they’ll be working in tandem should a vacancy arise on the court in Trump’s second term.

Associate Justices Clarence Thomas, 76, and Samuel Alito, 74, are two of the most stalwart conservatives on the Supreme Court. And while there’s always a chance that a justice can step down from their post, both Thomas and Alito have been institutions on the court for years.

Thomas was nominated to the court by Republican President George H.W. Bush and has served on the body since 1991. Meanwhile, Alito was nominated by Republican President George W. Bush and took his seat on the court in 2006.

There’s no indication that either man is retiring from the bench. But Republicans will be in the driver’s seat to make an appointment should either man step down over the next four years.

Peter Loge, an associate professor and the director of the School of Media and Public Affairs at George Washington University, told Business Insider that Thomas is a figure who might step down.

“If I’m Clarence Thomas, I’m thinking now is a good time to retire,” he said. “He’s been on the court for a long time. His legacy is frankly mixed at this point between his wife’s involvement with the insurrection in 2020 and his ongoing ethics scandal.”

(Thomas has faced a wave of criticism after ProPublica in April 2023 published a report that detailed how he had taken luxury vacations funded by the billionaire mega donor Harlan Crow — and had not disclosed the trips.)

Or the court’s makeup could stay the same

While Trump will surely want to make another Supreme Court appointment, his ambitions may not necessarily align with the feelings of the justices themselves.

Carl Tobias, a professor at the University of Richmond School of Law, told BI that it’s far from a given that any particular judge — even one with a like-minded political ideology — will step down because of Trump’s election.

“I think they’re independent-minded and they’re not just going to resign because of Trump,” he said. “They like what they’re doing.”

Tobias also noted that the extent of the GOP’s Senate majority — which is still up in the air — could make a big difference in what kind of jurist could actually win confirmation.

“Best-case scenario it may be 55-45 but more like 52-48 or something like that,” he said of the eventual Republican Senate makeup. “So they’re not going to be able to do everything they want, and there are people like Lindsey Graham and [Susan] Collins and [Lisa] Murkowski who may not go along on someone that’s too crazy.”

Sweeping reforms won’t occur

Many top Democrats have long eyed changes to the Supreme Court, whether it be expansion or some sort of ethics reform.

Biden this year laid out a plan to institute a binding code of conduct for the court and create 18-year term limits for justices. He also wanted to see lawmakers pass a constitutional amendment that would limit presidential immunity.

But with Trump soon to be back in the White House and a Republican-led Senate on the way, those plans are on ice indefinitely.

The GOP sees the current composition of the court as the fruit of decades of work to ensure a conservative tilt. Leaders like Sen. Mitch McConnell of Kentucky over the years have criticized Democratic attempts to reform the court/

McConnell played a leading role in blocking the 2016 nomination of Merrick Garland — now the US Attorney General — to the Supreme Court. At the time, the Kentuckian was the Senate’s majority leader, and a fierce opponent of then-Democratic President Barack Obama.

During a Wednesday press conference in Washington, McConnell reveled in Republicans flipping the Senate.

“One of the most gratifying results of the Senate becoming Republican: the filibuster will stand, there won’t be any new states admitted that will benefit the other side,” he said. “And we’ll quit beating up the Supreme Court.”