White House says Trump will never let Democrats pack the Supreme Court

DeSantis sees zero chance of a Thomas or Alito successor under Trump

The White House said Thursday that “extreme Democrats have a history of politicizing the Supreme Court, even entertaining plans to pack the Court with liberal justices.” “President Trump will never let them pack the Supreme Court and ruin the independent judiciary,” White House spokeswoman Lauren Bis said.

Florida Gov. Ron DeSantis posted his assessment on X after Tuesday’s elections. “Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero,” DeSantis wrote, adding: “Chance of confirming a worthy successor during a hypothetical GOP admin 2029-2033: probably zero (GOP won’t be able to recapture enough seats in 28).”

Dale Carpenter, a law professor at Southern Methodist University’s law school, said the justices are aware of what the new Senate math would mean. “I think the justices must know that if they were to retire now, at this moment, right before Democrats take the Senate, there would be an enormous amount of pressure unlike any we’ve seen to make serious change to the court,” Carpenter said.

Neither of the court’s two oldest justices — Samuel Alito, 76, or Clarence Thomas, 78 — has publicly indicated an imminent retirement. Alito has publicly mused about retirement in recent months, telling The Associated Press that he’s not sure “how long I’ll be able to continue to do this job.” He has also said he’ll stay on the court through the end of the term next summer and told Bloomberg he would not step down during a lame-duck period. Thomas is closing in on a record-setting tenure and would become the longest-serving justice in the nation’s history if he served until May 2028.

Trump has shown unusual deference to Alito and Thomas, even as he has attacked other justices who have ruled against him, praising both for their legal acumen and declining to say whether they should step down so the president could nominate their successors. In a Fox News interview in April, Trump said he has a shortlist of potential nominees but did not know whether he would have another vacancy this year, citing Alito’s “very good physical health.”

Trump established his imprint on the court in his first term by naming three of the current justices. In the past, he had mused privately that he could end up nominating up to seven people for the nine-person bench by the end of his second term, according to a person with knowledge of those comments.

Senate Minority Leader Chuck Schumer, who is likely to return as majority leader next year, said in an interview with The Associated Press that Democrats will prevent Trump from installing a “right-winger” on the Supreme Court and that they are “not going to allow any crappy nominees” elsewhere in the federal judiciary or in Trump’s Cabinet. “The bottom line is, we’re not going to allow a right-winger on the court,” Schumer said.

Schumer declined to say specifically whether he would hold any Supreme Court vacancy open until after the next presidential election, as former Senate Republican leader Mitch McConnell did in 2016, clearing the way for Trump to nominate the first of his three Supreme Court picks.

Democrats will hold at least 54 seats next year and as many as 56 depending on final results in Mississippi and Alaska, giving them a significant majority to block Trump’s nominees or just ignore them outright. After years of being on the losing end of highly partisan confirmation fights against Republicans, especially on Supreme Court nominees, Democrats will be under considerable pressure to wield the same type of aggressive tactics.

Lifetime appointments typically come with a remove from political upheaval, even of the scale of Tuesday’s elections, where Democrats regained control of both the House and Senate.

Historically, some justices have timed their retirements with the president who would name their successor in mind, but it is far from the only consideration in their decision making. Former liberal Justice Ruth Bader Ginsburg famously resisted efforts from progressives to retire when President Barack Obama was in office and died in the last year of Trump’s first term, allowing him to replace her with conservative Justice Amy Coney Barrett. Barrett would go on in 2022 to join the majority opinion in Dobbs v. Jackson Women’s Health Organization, which erased the constitutional right to an abortion.

Even if there were a surprise Supreme Court vacancy in the coming weeks, lame-duck confirmations while Republicans still remain in power aren’t a sure thing. Trump effectively forced Sen. Thom Tillis of North Carolina out of a reelection bid; that seat was won Tuesday by the state’s former governor, Democrat Roy Cooper. The president also opposed two Republican incumbents in their primary races, Sen. Bill Cassidy of Louisiana and Sen. John Cornyn of Texas, and Democrats won those seats. Maine Sen. Susan Collins, another Republican who lost, attributed her defeat in part to Trump.

The Democrats’ sizable margins in the Senate also will hamper the Republicans’ effort to regain ground in the 2028 elections, where the GOP will be defending states such as Wisconsin, North Carolina and Iowa where Democrats made significant gains on Tuesday.