Genuine question, if Trump wins in November what does this mean for the Supreme Court?

British here so only have a limited understanding of the US system. So, at the moment it has six conservatives and 3 liberals, the latter are aged between 54 and 70 and you have to assume you'd lose at least 1 of those naturally before 2028 and if the older conservatives decide to retire Trump can replace them during his term. Frankly it looks like a pro-conservative SC for decades to come.

So, if any of those 3 decide to retire between election day and the inauguration can Joe Biden replace them with younger liberal judges? Or can the Senate/Congress block him? If they do, can the court continue to function without the necessary numbers? Is there any legal recourse for either side and if so what?

 

If Trump wins he will get to replace Thomas and maybe Sotomayor. She will hang on as hard as she can, but it could be another Ginsburg situation. For the sake of progressives, Sotomayor should resigned earlier.

 

What do you mean "she will hang on"? She is 20 yrs younger than Ginsburg, and Thomas and Alito are older than she is and Roberts is about the same age. Her age is not an issue for another 15 yrs

Very unlikely any will retire. Thomas is the oldest one, and being there has been way too profitable for him to give it up (received $2.4 million in "gifts").

 

There are Dems who have floated idea of her resignation. She has diabetes, and her health is not rock solid.

 

They have to be confirmed by the Senate. The POTUS can appoint someone temporary if Congress is in recess but it is not a permanent position.

 

The president at the time of the opening gets to nominate a candidate to the senate for approval.
Remember the embarrassing hate fest over Kavenaugh. No one got called on perjury. It was the most disgusting (government) spectacle I have ever seen.

 

So with the current make up of the Senate would that be easy or would that be another fight?

 

Yeah, that's what I thought but with the current balance is that a done deal or would it be another fight?

 

Then you don't have a very long memory.

The MOST disgusting (government) spectacle I have ever seen is when Scalia died in Feb. 2016 and Mitch McConnell announced, before anyone had even been nominated, that ANYONE Obama nominated would not get a Senate hearing. That they would wait until after the election and let whoever won the 2020 election make the nomination. McConnell claimed that it was so the American voters would get a say in the nomination. Of course this was 8 months before the election.

Flash forward a little more than 4 years and in September of 2020 RBG dies, and McConnell cannot act fast enough to approve Trump's nomination of Amy Coney Barrett. There has never, in the history of this country, been a more brazen display of outright hypocrisy than in this case. The absolute politicization of the nomination and confirmation process to name someone to the Supreme Court.

That makes anything Kavanaugh had to "suffer" through pale in comparison

 

Elections have consequences.

If you believe that if the tables were turned that Democrats would have done any differently.....I have some swampland I would love to sell you.

 

They would have done differently because they HAVE done differently.

The refusal to hold hearings on a Supreme Court nominee in an election year is UNPRECEDENTED.
There was no reason to announce refusal to hold hearings in February (especially before a nominee was even announced). NONE. It was 100% a political power play. It was the first time in our 200+ year history that this was done. So yeah, the Democrats would have done differently.

But as bad as that was (and it was bad) it was just exacerbated by the flimsy excuse ("American People deserve to have a say in the process") that was just blown out of the water by the most disgusting display of hypocrisy in the history of politics when the EXACT SAME SITUATION occurred four years later with the only difference being that it was less than 2 months (vs. the EIGHT months earlier) to the election and then the Republicans did a complete 180 and decided that the American people DID NOT deserve to have a say in the process.

And now, here you are, trying to claim what the Democrats WOULD HAVE done as some sort of defense.

This is a major reason why many people view the Republicans with such disdain.

 

Democrats currently hold the Senate and the Presidency.

This means that any judge that retires would have their leftist replacement nominated by the President and approved by the Senate before the election. If the President and Senate were not of the same party, nothing would happen between now and November because it would be a stalemate.

That is the reality of the situation.

 

Nonsense.

It would have played out the exact same way in reverse. You point to a 200 year history, but the reality is that a Supreme Court justice dying in an election year is exceedingly rare.

Of course it was a political power play, and Republicans flexed their political muscle. If you think that Democrats would not have done the same you do not understand modern politics.

 

It will be a fight because that is what the democrats do. The biggest beef I have is the outrageous "witnesses" they produce are often proven to be liars, and neither side does a thing.
The weaker they are the more outrageous the accusations.
The democrats are already preparing the lawfare battle field, to fight to protect Americas dysfunction.

 

It would be generally hard but the new Senate is sworn in in January a few weeks before the next POTUS (January 3). There is this quirky rule on the Senate that normally to pass something needs 60 votes instead of 51 votes. They can vote to suspend the rule (often referred to as the "nuclear option") but realistically it is improbable that Biden could get someone confirmed in the 7 weeks or so

 

If any vacancy appears, joe can appoint if he can get 51 senators to agree to it.

Congress could also pass legislation to add seats to the court, which with 51 votes he could also fill.

Neither of those things are things he has the votes for.

 

The Dems are way ahead of you. They've already tried to float a Sotomayor resignation so they could put someone in during Biden's term. However the Obama administration tried to do the same thing with Judge Ginsburg. The problem with the Judges is same as everyone else in Washington, massive egos with zero ability to put either the country or the party above themselves.

I mean...that's why Biden is still running.

 

The senate is basically in control. In the past it was more of a rubber stamp, but Mitch showed the senate has most of the power in determining new scotus justices these days. The president can nominate, but the senate can find excuses until there is one they like. And republicans are more prepared to play dirty, as has been the case for a long time.

scotus can function with less or more, but 9 helps avoid ties without being cumbersome and is the traditional number

 

With the current Senate a knock down drag out fight but the court still operates with the vacated seat empty.

 

I don't know why we would lose one of them within so few years. The elder would only be 74 in 2028.

 

I wonder has anyone ever done a study? What is the average term for SCOTUS? What age do they normally retire at?

 

It depends exactly what you mean by "conservative".
One of the judges Trump appointed was Kavanaugh, who is a Constitutionalist (believes in an original type of interpretation of the Constitution, restricting national government rights), but he is not really "conservative". In fact he is moderately socially progressive, coming from a big city area.
And Roberts turned out not to be so "conservative" even though he was appointed by a Republican party President George W. Bush (Jr).

Really more so only moderately conservative. The Left is not happy because these judges are going to interfere with the type of government policies the Left is going to try to pursue.
Many would argue that's not really "unfair".

The Left in the U.S. has a history of installing "activist" judges who sort of ignore the law and Constitution to allow certain policies, even though some people accuse government of overstepping its proper legal powers.

Theoretically yes. The Senate has to confirm the judge though. As of April 2024, Democrats currently have a narrow 51 to 49 majority in the Senate.
Usually Supreme Court judges are reluctant to resign. So there is the question of how far Democrats would push to replace an aging judge who doesn't want to resign.

The fact Democrats only hold a narrow majority probably is going to mean any replacement candidate would not be too radical or excessively far to the Left. They're going to have to have at least half-decent qualifications and be at least a little bit reasonable.

 

Scalia died at the age of almost 80. He served on the Supreme Court for 30 years.
Ginsburg was 87. She served on the Supreme Court for 27 years.
U.S. Supreme Court judges usually die while still in office.

 

Not for SCOTUS.

 

Biden will not be able to nominate anyone.
A Trump presidency would indeed offer the opportunity to replace older conservatives with younger, especially if Republicans control the Senate.