Biden: Next POTUS Could Appoint Two SCOTUS Justices

He may be under-estimating.

NPR (“Biden says the next president may get to name two Supreme Court justices“):

President Biden on Saturday night said he expects the winner of this year’s presidential election will likely have the chance to fill two vacancies on the Supreme Court – a decision he warned would be “one of the scariest parts” if his Republican opponent, former President Donald Trump, is successful in his bid for a second term.

[…]

“The next president is likely to have two new Supreme Court nominees. Two more. He’s already appointed two that have been very negative in terms of rights of individuals,” Biden said. Trump named three justices during his term – Neil Gorsuch, Brett Kavanagh and Amy Coney Barrett – cementing the conservative majority on the bench.

[…]

This is the second recent time Biden has mentioned potential future vacancies on the courts. He told a campaign rally last month that he would name “progressive judges” to fill vacancies. “The next president — they’re going to be able to appoint a couple of justices,” Biden said in Philadelphia at the launch of an effort to court Black voters.

“Look: if, in fact, we’re able to change some of the justices when they retire and put in really progressive judges like we’ve always had, tell me that won’t change your life when Trump justices are already gutting voting rights, overturning Roe, decimating affirmative action, and so much more,” he said that event.

Here is a list, from oldest to youngest, of the current Justices:

  • Justice Thomas, 75
  • Justice Alito, 73
  • Justice Sotomayor, 69
  • Chief Justice Roberts, 69
  • Justice Kagan, 63
  • Justice Kavanaugh, 58
  • Justice Gorsuch, 56
  • Justice Jackson, 53
  • Justice Barrett, 52

If Biden wins, he’ll almost certainly get to appoint Sotomayor’s replacement. (He could potentially do that even if he loses, as she could resign on the day after the election, and Biden could rush a replacement through the current Democratic-majority Senate in much the way Trump did with Barrett when Ruth Bader Ginsburg passed.) Thomas and Alito would likely try to wait him out but that gets harder in your 70s.

Now, imagine you’re a Senator who thinks the rulings since Trump changed the makeup of the Court are a good thing, indeed. Even if you privately think—as most of them almost certainly do—Trump is a horrible human being who is otherwise unfit for the office, wouldn’t the prospect having three Biden Justices on the Court weigh heavily on your thinking?

Indeed, if Trump were re-elected, he would almost certainly replace Thomas and Alito with Justices who are 20 or so years younger. And quite possibly replace Sotomayor and Chief Justice Roberts to boot. That would make seven of the nine Justices Trump appointees.

If you think that’s a frightening prospect, consider how Trump’s co-partisans feel. That’s enough to overcome a lot of “what’s good for the country” instinct, especially if you think the makeup of the Court is a big part of that.

FILED UNDER: 2024 Election, Law and the Courts, Supreme Court, US Politics, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    Historically, the make up of the supremes and courts in general, hasn’t been a motivating factor for voters. Due to Dobbs and personal corruption, the current court has more presence of mind for some voters, but the issues and the court’s direction are not something a significant cohort of voters concern themselves, in part, because they don’t feel it effects them.

    The court will be a motivating factor for a small slice of the Dem electorate, that’s all.

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  2. James Joyner says:

    @Sleeping Dog: I’m mostly thinking of our recurring discussion as to why Republican officials refuse to “do the right thing “ in opposing Trump. It’s easier said than done in a bimodal system.

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  3. Kevin says:

    In Biden’s case, the Senate composition will matter too, as to whether he’ll be able to appoint any justices. Of course, depending on who dies/retires, that he can’t replace someone may not be a problem.

    But given the recent decisions, and upcoming decisions, I can see the court being much more front of mind to voters. The court used to focus on resolving disputes between circuit courts, so there was uniform law across the country. Now, they seem much more intent on injecting themselves into disputes where there is no dispute, so they can engender the outcomes they want.

    Hopefully during whatever confirmation hearing there are, the Senate will focus much more on the potential justice’s attitude towards receiving gifts and flags.

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  4. @James Joyner: Exactly. The ability to shape the Court is one helluva an incentive to rationalize away Trump’s faults and/or simply ignore a great deal of his odiousness.

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  5. Scott F. says:

    “Doing the right thing” doesn’t just apply to GOP politicians opposing Trump though, does it?

    Republican support for Trump isn’t simply about a willingness to kiss the ring of a venal man who is unfit for the office of POTUS. To my mind, Trumpism is a growing comfort with autocracy and with keeping power over all other considerations. So, McConnell’s refusal to seat Obama’s nominee to SCOTUS and his fast track of Barrett to keep Biden from seating RBG’s replacement are of a piece with the GOP’s openness to thwart norms and take advantage of any rule or structural advantage they can to grasp anti-majority power.

    Do we have any reason to believe that a newly GOP Senate in the Age of Trump will allow Biden to seat replacements for Thomas or Alito if Biden wins the WH, but Dems lose the Senate? Republican leaders have learned their voters want them to destroy norms if it means their interests can be advanced without compromise. And we’re all learning that the rest of America’s voters can’t be bothered to care until the new autocracy doesn’t have an answer for high gas and grocery prices. (It won’t be pretty, but the new autocracy WILL have an answer to “solve” immigration – humanity be damned.)

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  6. JKB says:

    Thomas and Alito would likely try to wait him out but that gets harder in your 70s.

    Far easier for a Supreme Court justice to serve in their 70s and 80s than an octogenarian president who is already showing rapid mental decline and easy distraction by shiny objects.

    Of course, the vote is not on Trump’s character, but rather a choice between two men. One in rapid mental decline and the country run by those seeking to finish off America in his administration and the other who talks loudly but in the end had the country and even world on a good footing with his impolite calling out of NATO countries, pushing early disentanglement from China and energy independence.

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  7. @JKB: Could you parse out the mental acuity of the candidate who was pontificating about sharks and electrocution for me?

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  8. Paine says:

    If the Republicans win the Senate, which seems likely, they won’t be confirming any Biden SCOTUS appointments. This is the system the Democrats continue to defend.

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  9. Scott F. says:

    @Steven L. Taylor:
    While he’s at it, maybe JKB can parse out how higher wages, low unemployment, massive infrastructure investment, strong international alliances, standing up against authorianism, etc., equals “seeking to finish off America.”

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  10. Just nutha ignint cracker says:

    @Scott F.:

    t how higher wages, low unemployment, massive infrastructure investment, strong international alliances, standing up against authorianism, etc., equals “seeking to finish off America.”

    It works the same for those issues as it does for budget deficits: When a Republican is President, all of the key points are either indicators of how well the country is being run or immaterial at worst. When a Democrat is President the indicators are tangible signs that Liberals are selling out our nation. That and gaming the Supremes according to which side of the status quo you’re on has been a feature of the political discourse since the Brown and Roe v Wade decisions.

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  11. wr says:

    @JKB: “an octogenarian president who is already showing rapid mental decline and easy distraction by shiny objects.”

    Why do I suspect you were looking in the mirror when you typed this?

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  12. mattbernius says:

    With regard to the age thing, it’s worth noting that Trump himself (wisely) isn’t attacking Biden on his age. In fact he explicitly says Biden isn’t to old.

    Wild that he sees the problem with that line, but his supporters do not.

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  13. Lounsbury says:

    @Steven L. Taylor: on the flip side I should think that for the Lefties, the potential for Trump to set a Supreme Court in a radical direction should be more than slightly motivating off-set (abortion, contraception rights etc) – and to avoid purity ponyisn that it is often prone to.

    The risk to contraception rights seems to me quite exploitable one with suburban mums etc.

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  14. al Ameda says:

    lol … Recently had a conversation with neighbor with whom I’ve been on good terms with for about twenty five years. It feels like 2016 Deja Vu, right?

    Back then he voted for Jill Stein and he rationalized his vanity vote by saying that, hey, this is CA and Hillary is going to win CA and the election anyway. To which I said, ‘then vote for Hillary. I know you don’t like her but there is one reason to vote for her – appointments to the Supreme Court.’ To which he said, ‘she’s going to win anyway.’

    Well here we are again, it’s 2024, and he’s going to vote for RFK Jr. I said RFK Jr is de facto a proTrump anti-vaxxer and there’s no chance I will vote for him. He then said that I should give him a chance and consider his positions as an environmentalist. I asked him how he likes this Supreme Court? (((Crickets)))

    Yeah, I’m a brat, but I’m tired of ‘my fellow’ liberals who insist on a kind of purity that causes us to lose focus, lose elections.

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  15. Just nutha ignint cracker says:

    @al Ameda: While I see your point, no matter how big the Biden margin in Cali is, it won’t impact Biden losing in, say, Wisconsin, Arizona, Pennsyltucky, and wherever the 4th remaining swing state is. Yeah, it would be nice if Dems all pulled in the same direction, but not having unity in Cali is insignificant for now.

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  16. Hal_10000 says:

    If Biden wins and the GOP takes the Senate, he will appoint zero Supreme Court justices. The Republicans will hold out until the next election. They’ve made that clear.

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  17. DK says:

    @Just nutha ignint cracker:

    Yeah, it would be nice if Dems all pulled in the same direction, but not having unity in Cali is insignificant for now.

    It would be insignificant if wayward California liberals existed in a vacuum. But we don’t. Our friends elsewhere hear what we’re saying, see what we’re posting, etc.

    A California liberal doing something silly like justifying an RFK Jr. vote builds a permission structure for liberals elsewhere to do the same. Liberals’ refusal to see thid is one reason why we have a radical right extremist Supreme Court. I wish silliness stayed isolated, but it spreads. Quickly, these days.

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  18. James Joyner says:

    @al Ameda:

    Back then he voted for Jill Stein and he rationalized his vanity vote by saying that, hey, this is CA and Hillary is going to win CA and the election anyway

    But his vanity vote for Stein indeed had zero impact on the election. Hillary won California by an 8,753,788 to 4,483,810 vote margin. Another 4 million people could have voted for Stein and Hillary would still have gotten every single one of California’s Electors.

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