Control of the U.S. House of Representatives remains undecided days after Tuesday's election — so it's still unclear how much power President-elect Donald Trump will have to pursue his legislative agenda.
But one thing is clear: The House has nothing to do with judicial appointments, and Republicans will have at least 52 seats in the next Senate — more than they need to confirm anyone Trump nominates to the U.S. Supreme Court. (In 2017, Republicans eliminated the filibuster for Supreme Court nominees, lowering the bar for confirmation from 60 votes to 51.)
Supreme Court justices serve lifetime appointments — meaning their time on the bench ends only when they retire or die. There are now four justices who will be older than 70 during Trump’s second term: Republican appointees Clarence Thomas (now 76), Samuel Alito (now 74) and John Roberts (now 69), as well as Democratic appointee Sonia Sotomayor (now 70). Democratic appointee Elena Kagan is 64, and the other four justices — three Trump appointees and one Joe Biden appointee — are in their 50s.
“Conservative” justices (six) currently outnumber “liberal” justices (three) on the court. None of them has indicated that they intend to step down soon. But that hasn’t stopped pundits and partisans from speculating about how Trump’s victory could affect the court’s composition. Here are a few scenarios.
The status quo
Sixteen Supreme Court justices have served past their 80th birthday; 65 have served past their 70th. There's no actuarial reason to assume that Thomas, Alito, Roberts or Sotomayor would have a health crisis in the next four years. And people "close to" the eldest justices — Thomas and Alito — are "adamant that neither man would [voluntarily] leave the court at this point," according to NPR:
"What would he do, go home and fly flags with his wife at the beach?" said one Alito ally, adding that the court is "Alito's life." As for Thomas, his friends and former clerks say he would see retirement as "caving into his critics" and being "driven off the court."
The New York Times reported in 1993 that Thomas, who was appointed to the court in 1991, once told a clerk he intended to stay on the bench until 2034. "The liberals made my life miserable for 43 years," Thomas, then 43, said at the time, "and I'm going to make their lives miserable for 43 years."
Meanwhile, neither of the elder liberal justices (Sotomayor and Kagan) will voluntarily retire while Trump has the power to appoint their replacement and expand the conservative majority. So things might stay the same.
Alito and/or Thomas retire
Despite two bouts with cancer and plenty of public pleas from progressives, liberal Justice Ruth Bader Ginsburg, then about 80, refused to retire in 2013 or 2014 when President Barack Obama and a Democratic Senate could have appointed and confirmed her successor. Ginsburg died in September 2020 — and Trump immediately replaced her with Justice Amy Coney Barrett, then 48, cementing the court’s current 6–3 conservative majority right before he lost the 2020 election.
Both Democrats and Republicans want to avoid a Ginsburg repeat. For Alito and Thomas, this would mean preemptively retiring while Trump is president and Republicans control the Senate — something that's guaranteed only for the next two years. (The next Senate elections are in 2026.) CNN reported in July that Alito has at least "reflected in private about retirement."
If one or both of the eldest justices depart, it would only be to make way for a much younger ideological match who could serve (and help ensure conservative dominance) for decades to come — possibly plucked from the ultra-conservative Fifth Circuit Court of Appeals, where former Alito and Thomas clerks regularly issue far-right decisions that are reversed by the current justices, including the men they once clerked for.
Notably, Republicans now have enough seats in the Senate to confirm a new Trump nominee, even if the two moderate members of their caucus — Alaska’s Lisa Murkowski and Maine’s Susan Collins — object. Vice President JD Vance would break a 50-50 tie.
The court’s composition wouldn’t change in this scenario — it would simply be locked in for longer. And Republicans wouldn’t have to worry about Alito or Thomas dying later, while Democrats are in control.
Sotomayor retires
Though Sotomayor is several years younger than Alito and Thomas, she also suffers from diabetes. That's why some Democrats began a quiet campaign last year to nudge her out.
The whispers didn't go over well at the time: "How dare they suggest pushing the first Latina justice — a solid progressive vote — off the bench?" is how Politico summed up the backlash. But now the chatter is resuming.
The idea would be to avoid another Ginsburg by: 1) convincing Sotomayor to retire ASAP; and 2) replacing her with a younger liberal justice (possibly D.C. Circuit Judge J. Michelle Childs) while Biden is still president and Democrats continue to control the Senate during the coming lame-duck session.
According to Politico, this is now "a conversation members of the Senate are actively engaged in."
It is unlikely, however, to succeed. With a 51–49 majority — which includes three independents — Democrats could spare only a single vote. And time is short. Any delay — which Republicans would try to force — could leave Sotomayor’s seat vacant until next year, at which point Trump would simply replace her with a conservative. Sotomayor probably won’t risk retiring under these circumstances.