There is speculation within the legal community over whether Supreme Court Justice Clarence Thomas will retire during Donald Trump‘s presidency, given he is currently 76 years old.
Justice Samuel Alito is 75 years old, sparking similar speculation about his future as well.
According to Supreme Court scholar Adam Feldman, there are six judges in the U.S. who are likely to be considered by President Trump if either justice resigns.
Feldman told Newsweek that the possibility of either judge retiring is “unlikely but possible.”
“Neither are terribly old by Supreme Court standards, both are in their mid-70s, but Thomas will be 80 around the end of Trump’s term. Neither have major health issues, at least those that have been made public. If they have confidence that the next president will be a Republican then they have incentive to stay,” said Feldman.
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Why It Matters
President Trump has already picked three out of the nine justices on the Supreme Court. If he had the opportunity to pick two more justices, his presidency and worldview could have a lasting impact on the future of US law long beyond the next three and a half years.
However, Justice Barrett has not always ruled in the Trump administration’s favor recently, showing that appointing a judge does not guarantee their support from the bench.
What To Know
Supreme Court seats are lifetime and supposedly apolitical appointments, but justices occasionally retire during the term of a president who aligns with them politically in order to ensure their legacy is retained by the court.
For example, Justice Ruth Bader Ginsburg declined to retire during the Obama administration before passing away under Trump, meaning her seat is now occupied by Justice Amy Coney Barrett, who is significantly more conservative in her interpretation of the law than Ginsburg.
“Ginsburg’s example…sheds light on the risk of waiting too long to step down. Since both Thomas and Alito have a lot of sway on the direction of the Court’s outcomes, I don’t foresee either stepping down unless there is another reason, [for example] health or fear that a Democrat will win the next election, that motivates them,” Feldman told Newsweek.
According to Feldman, the six judges who are likely to be tapped for consideration are judges Patrick J. Bumatay, Aileen M. Cannon, James C. Ho, Andrew S. Oldham, Neomi J. Rao and Amul R. Thapar.
Trump has said in the past that he wants to appoint “more justices like the ones I already picked,” so Feldman, creator of the Empirical SCOTUS blog, analyzed decisions and written statements made by the prospective judges and compared them to Trump’s picks: Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett.
He also compared their decisions to those made by Thomas and Alito, examining the language and citations used in their work to determine how it would appeal to the president.
According to Feldman’s research, Judge Andrew Oldman, who currently is in a Trump-appointed role for the U.S. Circuit Court of Appeals, is the most similar to Trump’s picks, whereas Judge James Ho is the most similar to Alito and Thomas.
Despite ruling in the President’s favor several times, including blocking lawmakers from reading the Jack Smith report into Trump’s handling of classified documents, and currently being the presiding judge in the case surrounding the second assassination attempt on the president in 2024, Cannon appears to be the furthest away from the Trump appointees and Alito and Thomas.
She is one of the most frequent users of “hot-button” words in her writing, including “tyranny,” “culture,” “elite,” and “freedom.” These are terms Feldman has singled out as appealing to Trump. However, she does not possess the same qualities as other potential candidates, such as clerking for a Supreme Court judge.
Feldman told Newsweek: “My best guess is that Trump would appoint her to a federal appellate court first and nominate another judge (Ho for instance) if there is a SCOTUS vacancy soon although the Cannon likelihood goes up if there is a vacancy towards the end of Trump’s term.”
According to Feldman’s metrics, the most likely pick to replace Thomas is Ho, and the most likely pick to replace Alito is Oldham.
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What People Are Saying
Attorney Bradley P. Moss told Newsweek in a previous article: “I see absolutely no reason to believe Clarence Thomas will step away from the bench until either he physically is unable to continue with his work, or he is assured that a handpicked successor will be confirmed without incident.”
Adam Feldman told Newsweek: “With the recent news that Trump is unhappy with Barrett in particular I think he is likely to pick someone who has a more pronounced judicial track record (Barrett’s was minimal) that conveys a more conservative bent. That is why my sense is that Judge Ho is the most likely nominee if there is a vacancy. He is about as much a surefire bet to fit the Alito/Thomas paradigm and he clerked for Thomas which adds to his pedigree.”
Adam Feldman wrote in his Legalytics Substack: “My sense still is that Judge Ho is the obvious pick if Justice Thomas is the next justice to step down and Judge Oldham likely gets the nod if Justice Alito is the first to leave SCOTUS as recent history has shown that presidents may look first to a justice’s former clerk to as a replacement if possible.”
What Happens Next
Neither Alito nor Thomas have said they are thinking about retiring. Early in his career, Thomas threatened to quit over his salary. However, that has now been raised.
Were either justice to pass away or retire, the president will pick a replacement justice who will be voted on by the Senate.
