Tom Nowlan is an Associate Director in FGS Global’s Washington Office, where he is a member of the firm’s Supreme Court Litigation practice.
Republican Donald Trump’s 2016 presidential bid included a promise to name conservative, anti-abortion justices to the Supreme Court. And, as Trump tells conservative audiences this year, he delivered. Trump’s three nominees were in the 6-3 majority in Dobbs v. Jackson Women's Health Organization, the 2022 decision overturning the landmark Roe v. Wade ruling guaranteeing the right to abortion.
The ruling handed social conservatives a victory they had sought for decades and shows why Supreme Court appointments are sometimes called a president’s single biggest tool to leave a lasting policy legacy. Trump was out of office by the time Dobbs came down, and it dd not matter that the Democrat who had defeated him, President Biden, opposed the ruling.
With that legacy in mind, here is a look at what Supreme Court confirmation prospects might look like for the candidates seeking the White House this year, Vice President Kamala Harris (D) and former president Donald Trump (R):
Potential Retirements
There are currently no vacancies on the high court. However, history suggests that one will emerge -- all presidents since 1900, save for Jimmy Carter, have nominated at least one justice.
If Trump wins, older members of the court’s conservative bloc may opt to step down, safe in the knowledge that they would be replaced by justices who share their judicial philosophy. Samuel Alito, 74, has reportedly mused in private about retirement. Clarence Thomas, 76, the court’s oldest and longest-tenured member, has missed oral arguments due to health issues in recent years.
If Harris wins, Sonia Sotomayor, 70, would be the most likely to retire. Some Democrats in Congress have already begun to nudge Sotomayor in that direction.
Death
Supreme Court justices serve for life, or until they retire. Two court vacancies in the last decade arose because of the death of a sitting justice: Antonin Scalia in 2016; Ruth Bader Ginsburg in 2020.
Potential Nominees
Trump: Before both the 2016 and 2020 elections, Trump released lists of potential Supreme Court nominees. Although he has not done the same in 2024, active judges who appeared on both the 2016 and 2020 lists (and are under the age of 59) include:
Raymond Kethledge, 57, U.S. Court of Appeals for the 6th Circuit
Joan Larsen, 55, U.S. Court of Appeals for the 6th Circuit
David Stras, 50, U.S. Court of Appeals for the 8th Circuit
Don Willett, 58, U.S. Court of Appeals for the 5th Circuit
Harris: Harris has not dropped hints about who she might nominate, but certain names have been floated in liberal legal circles:
Sri Srinivasan, 57, Chief Judge, U.S. Court of Appeals for the DC Circuit
Elizabeth Prelogar, 44, U.S. Solicitor General
Nancy Abudu, 50, U.S. Court of Appeals for the 11th Circuit
Florence Pan, 57, U.S. Court of Appeals for the DC Circuit
Senate Confirmation
FGS Global predicts that the Senate is likely to be under Republican control in the next Congress. If Trump wins the presidency, Trump’s nominees would have a glide path to the simple majority needed for confirmation.
If Harris wins and Democrats manage to hang onto control of the Senate, her nominees will likely face a similarly smooth path.
A Harris win paired with GOP control of the Senate sets up the potential for conflict or stalemate. Harris might also feel pressure to nominate someone seen as less liberal than many Democrats prefer in hopes of persuading enough Republicans to get a nominee over the line. A Trump win paired with a Democratic-controlled Senate could also set up similar dynamics, although that scenario appears less likely.
Regardless of which candidate wins the Nov. 5 election, the conservative Supreme Court majority is likely to hold for years. To change the balance, a Democratic president would need two chances to replace conservative justices and would probably need Democrats to control the Senate for each vote.