The clearest sign of what Tuesday’s election did to President Trump’s second term is the Supreme Court. Trump transformed the Court in his first term, naming three of its nine justices and building its 6–3 conservative majority — and he had mused privately that he could end up nominating as many as seven of the nine by the end of his second term. With Democrats taking the Senate in January, his path to naming even one more has all but closed.
Chuck Schumer, who is set to return as Senate majority leader, promised in an interview that Democrats will prevent the President 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 either. “The bottom line is, we’re not going to allow a right-winger on the court,” Schumer said. Democrats will hold at least 54 of the 100 Senate seats next year, and possibly as many as 56 depending on the final results in Mississippi and Alaska — more than enough to block any nominee, or to simply ignore one and leave a seat empty.
And for now, there is no vacancy to fight over. Neither of the Court’s two oldest justices — Clarence Thomas, 78, and Samuel Alito, 76 — has publicly indicated an imminent retirement. Alito has said he will stay on the Court through the end of its term next summer and told Bloomberg he would not step down during a lame-duck period, though he has also mused that he is not sure “how long I’ll be able to continue to do this job.” Thomas is closing in on a record: if he serves until May 2028, he becomes the longest-serving justice in the nation’s history.
Florida Governor Ron DeSantis, a Republican, laid out the same math in a post on election night:
Even a surprise vacancy in the coming weeks would not make a confirmation a sure thing: the lame-duck session, the last stretch with Republicans still in control, runs into Thanksgiving and Christmas, and the majority carrying it is fractured after a campaign in which the President opposed two of his own party’s incumbents. Schumer declined to say whether he would hold a Supreme Court vacancy open until after the next presidential election, as Republican leader Mitch McConnell did in 2016 — the move that cleared the way for Trump to name the first of his three justices. The White House answered that “extreme Democrats have a history of politicizing the Supreme Court, even entertaining plans to pack the Court with liberal justices,” and spokeswoman Lauren Bis said: “President Trump will never let them pack the Supreme Court and ruin the independent judiciary.”
For ordinary Americans, what this settles is the Court itself. The 6–3 conservative majority — the majority that ended the constitutional right to abortion in the Dobbs decision and has ruled on gun rights, religious freedom and the limits of presidential power — now stands exactly as it is for at least the next two years, because no seat can change hands without a confirmation the Senate can refuse. Trump said in April that he has a shortlist of potential nominees ready, but unless a justice leaves the bench and a fight follows that nobody can now predict, the three justices of his first term may stand as his whole imprint on the Court.
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