The latest term of the U.S. Supreme Court just ended with a destructive bang, as the conservative majority of the Court continued exhibiting the counter-revolutionary bravura that led it to overturn Roe v. Wade in 2022, while occasionally showing an interest in moderating its image. Big late-June decisions putting an end to affirmative action in college admissions, blocking Joe Biden’s student loan relief plan, and validating religion-based homophobia reinforced a fundamental fact of contemporary political life: the current composition the Supreme Court is, in retrospect, one of the most consequential by-products of the 2016 presidential election. It should become a campaign issue in 2024, particularly for the Democrats who fear and loathe the Court.
The current makeup of the Court is already a major campaign issue among Republicans. The impact of Donald Trump’s three Supreme Court appointees is central to his appeal to conservative base voters in the 2024 Republican primaries. In 2016, he promised to produce a Court that would overturn Roe v. Wade, and he kept that pledge. This has made it difficult for Trump’s Republican rivals to outflank him on cultural issues like abortion and LGBTQ rights even when he takes the less stridently conservative position. Additionally, news of battles over abortion policy in the states is an ever-present reminder that the Court can have a huge effect on the personal freedom of millions of Americans. Indeed, it’s quite clear that the Court’s assault on reproductive rights was in 2022 — and will continue to be in 2024 — a winning issue for Democrats.
But Democrats also need to be realistic about what they can achieve with respect to the Supreme Court, apart from what they can do in the states or Congress to address the damage it has wrought. The current Court is simply not as vulnerable to overnight transformation as it was when candidate Trump was pledging to gut Roe. In 2016, two justices were over 80 and a third died. Now the oldest justices are Clarence Thomas at 75 and Samuel Alito at 73, not at all that old by historical Supreme Court standards. Three members of the Court (Justices Sonia Sotomayor and Elena Kagan and Chief Justice John Roberts) are in their 60s, and the three Trump appointees (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) along with the one Biden appointee (Justice Ketanji Brown Jackson) are in their 50s. This is a young Supreme Court, in which no justices are likely to retire unless their own party controls the White House and perhaps the U.S. Senate to ensure a smooth transition.
That doesn’t mean the stakes do not remain aren’t quite high in 2024, however. If Republicans do win back both the White House and the Senate, the odds of a Thomas and/or Alito retirement will go up significantly, creating the prospect of much younger conservatives perpetuating the current majority for decades to come. Ron DeSantis is trying to make GOP primary voters think about that contingency by promising that his future Supreme Court appointees will be in the mold of the hard-core conservatives Thomas and Alito rather than Trump’s occasionally wayward justices. And he’s also been pointing out that he will be eligible to serve a second consecutive term with power to make judicial nominations, while Trump is limited to one more term.
If there were a legitimately competitive Democratic presidential nomination contest in 2024, we might hear a robust debate over schemes to limit or reverse the impact of the conservative majority on the Court via expansion of the Supreme Court, term limits, restrictions on its jurisdiction, or even the impeachment of current justices. But there isn’t a real Democratic primary fight, so you can expect Joe Biden to simply remind his potential voters that he represents the only potential curb on Supreme Court radicalism and an even more ideologically tilted Court.
Aside from the presidential contest, it’s entirely possible that the future of the Supreme Court will also become an issue in the battle for control of the U.S. Senate, where the 2024 landscape gives Republicans a distinct advantage. Certainly Senate Democrats will hasten to remind their voters of the terrible consequences of GOP Senate control during Barack Obama’s last two years in office. Mitch McConnell blocked Obama nominee Merrick Garland from even a Judiciary Committee hearing, producing a two-justice swing in the composition of the Court. McConnell (or his successor as majority leader) would likely do so again if a Supreme Court opening occurred during a second Biden term.
More generally, the days of big bipartisan votes in the Senate to confirm a president’s judicial nominations are over; the last few Supreme Court nominees in both parties received only a smattering of confirmation votes from the opposing party. You could blame that on partisan polarization, but the better explanation is that we are all beginning to understand that lifetime appointments to the Supreme Court are too important to be regarded as a presidential perk. Considering what Trump did to constitutional law in just four short years, Democrats need to make the Supreme Court an essential issue in their 2024 campaigns, too.
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