From a booming economy to rising approval numbers, President Trump isn’t looking too shabby these days. However, of everything he has accomplished so far, appointing the constitutional originalist Neil Gorsuch to the Supreme Court may carry the most significant impact.
And regardless of what else he does in his four – make that eight – years in the White House, Donald Trump has a golden opportunity on the horizon as several Supreme Court justices reach their golden years. Never mind appointing his first in year one – Trump could very well replace three more, maybe even four, and ultimately transform the Court’s ideological makeup.
That is, of course, if the GOP doesn’t lose its hold on the Senate in November.
The Math Behind the Guesswork
According to a study published in 2006 in the Harvard Journal of Law and Public Policy, the average retirement age for Supreme Court justices since 1971 has been 78.7. Before that, it was 68.3. The average life expectancy in the U.S. is 76.3 for men and 81.3 for women according to The Henry J. Kaiser Family Foundation – ages they calculated using the CDC’s 2014 mortality statistics.
If we assume that each of the current justices below the average age of death will live at least to 76 for men and 81 for women and remain in office until at least 79, then we can make some guesses as to during which presidential term each will leave the Court.
Of course, no one is guaranteed to wake up tomorrow. And it’s entirely possible that some or even many of the justices will far outlive the average life expectancy. However, it does look like President Trump will get to replace three – maybe four – more Supreme Court justices, especially if he wins in 2020. This article assumes that the president will have a second term. Even for those who don’t think he’s doing well in the White House, the historical statistics don’t show much promise for a Democratic president in 2020. Donald Trump is the 13th since FDR’s fourth term, and other than Kennedy, who was assassinated in his first term, only three have failed to win a second.
The Short List
While Ruth Bader Ginsberg has no intentions of retiring, she still makes the top of this list. The leader of the liberal justices will be 88 years old at the end of Trump’s first term – and 92 at the end of his second. Therefore, despite her refusal to step down, her seat will almost certainly be vacant before Trump leaves office.
The second most likely justice to be replaced by President Trump is Anthony M. Kennedy. At 81, he’s a few years past the average retirement age and five years beyond the average life expectancy. Also, justices seem more likely to retire under presidents belonging the same party as those who appointed them – and they’re more hesitant, as Ruth Bader Ginsberg is now, to give an opposing party’s president the chance to replace them. Appointed by Reagan, Kennedy has come down on the conservative side of some issues. However, he is the most left-leaning of the Republican-nominated justices. Though there has been some mention of his possibly retiring, he might feel less secure in leaving under Trump given his views on abortion.
The other likely to leave the Court due to advanced age is Clinton appointee Stephen G. Breyer. At 79, he’s just beyond the average retirement age and a few years past the average life expectancy.
Barring any unfortunate health issues or accidents, the only other justice old enough to likely leave office under the next president or two is Clarence Thomas. The 69-year-old will reach the average male life expectancy just before the end of Donald Trump’s second term, and the average SCOTUS retirement age just a few years later. He has 27 years in now and will have served 33 years by the end of Trump’s second term. As a conservative justice, he may feel more comfortable retiring under a president like Trump than waiting for the inevitable Democrat to come.
Ideological Makeup of SCOTUS
It likely comes as no surprise that justices appointed by Republican presidents tend to vote conservative and that those selected by Democrats tend to lean left. The current Court has five appointed by Republicans – of which, Trump is likely to replace the most liberal and maybe one other – and four Democrat appointees – of which Trump will likely replace two.
The Supreme Court could very well be stacked 6:3 or even 7:2 in favor of a conservative view of the Constitution by the time Donald Trump leaves office.
The Dreaded “But”
As I explained after Representative Trey Gowdy (R-SC) announced that he would not seek re-election in November, The GOP will have lost far more incumbents come November than the Democrats. According to the Casualty List for the 115th Congress, Republicans are losing 41 Representatives, including eight committee heads, and three Senators to retirement or resignation. The Democrats are only losing 17 Representatives and one Senator.
This matters simply because vacant offices are easier to flip. Democratic challengers are more likely to take seats in traditionally Republican districts if there’s not a GOP incumbent defending it. This doesn’t mean that 41 House and three Senate seats that were Republican will be filled by Democrats in November – only that they are less secure.
Here’s the current situation, best summed up at 270towin.com:
“The U.S. Senate has 51 Republicans and 49 Democrats (including two independents). The 2018 Senate election takes place on November 6, 2018. There are 34 seats up in 2018, of which 26 are held by Democrats. That party will need to gain 2 seats to take control.”
Thanks to the way the Senate handled the Gorsuch confirmation, Trump can get his nominations confirmed easily enough so long as the GOP maintains at least that 51-vote majority – allowing him to reform the Supreme Court in his image for the next few decades.
However, if control of the Senate changes hands those ratios listed in the Ideological Makeup section could easily be reversed should a Democrat succeed Trump – which is highly likely, judging by the historical data.