The Democratic victory is fuelling questions about the longevity of the Supreme Court two eldest justices, Clarence Thomas and Samuel Alito, according to reporting on Thursday, in a consequence of the midterm result that extends far beyond the next two years. A Democratic Senate majority changes the arithmetic of any future vacancy, because it can confirm or block a nominee, and it changes the political calculation for any justice considering retirement. The Court, which has been a central issue in American politics for a decade, is now back at the centre of the argument.
Why it matters
The questions are about timing, not about any announced decision. Neither justice has indicated an intention to retire, and both have shown, over long careers, a willingness to remain on the Court through political change. But age and health are facts that no one can ignore, and a party that has just won the Senate will inevitably ask whether a vacancy in the next two years would be filled by a Democratic Senate or held open for a future president. That question will be asked in private by strategists, in public by commentators, and, eventually, by the justices themselves.
The Senate majority matters because confirmation is a Senate power. With at least 54 seats, Democrats can confirm a nominee without Republican support, and they can also block a nominee they consider unacceptable. That leverage applies to the Supreme Court, to the lower courts, and to the executive branch appointments that shape the administration. It is the most durable consequence of Tuesday, because a judicial appointment lasts for decades, while a legislative majority lasts for two years.
What happens next
There is also a political risk in raising the question too loudly. Justices do not like to be treated as political pieces, and public speculation about retirement can harden a justice resolve to stay. Democrats who want a vacancy will need to be careful not to create the impression that they are pressuring the Court, a charge that could backfire with voters who value judicial independence. The quiet approach, letting the justices decide in their own time, is likely to be the one the leadership takes, at least in public.
What is certain is that the Court will be a central issue in the next two years, and in the presidential election that follows. The midterm result did not create a vacancy, and it may not create one at all. But it changed who would fill a vacancy if one arises, and that change alone is enough to make the oldest justices the subject of speculation that will not go away.
