On Friday, the Supreme Court confirmed that Justice Samuel Alito sought medical attention after feeling ill during a March event in Philadelphia. “Out of an abundance of caution, he agreed with his security detail’s recommendation to see a physician before the three-hour drive home,” the Court said in a statement. Since then, Alito has remained fully engaged on the bench, but the episode has reignited speculation about a possible vacancy in the near future — maybe even more than one.
The incident with Alito, medically speaking, was kind of a non-event. But make no mistake about it, the incident reminds liberals how sore they still are about what happened with Justice Ruth Bader Ginsburg. Despite her poor health, she refused to retire when Barack Obama was president — Obama even tried to convince her to step down, but failed — and she ultimately died while Trump was in office, allowing him to nominate Amy Coney Barrett and get her confirmed before the 2020 election.
The liberal advocacy group Demand Justice is already in war mode. The organization announced a $3 million opening campaign to oppose any Trump Supreme Court nominee — before a vacancy even exists. If one or two seats actually open, the budget balloons to $15 million, with Justices Clarence Thomas, 77, and Samuel Alito, 76, squarely in the crosshairs. The group's president, Josh Orton, made clear he believes Trump will not repeat what he calls the "fundamental miscalculation about power" he attributes to Ginsburg and Obama.
In other words, he expects Trump to push for retirements while Republicans still control the Senate.
But Demand Justice's strategy goes beyond just fighting a nominee.
The group plans to tie every Republican Senate candidate in a competitive race directly to any confirmation battle, nationalizing the midterms around judicial appointments and making the long-term ideological future of the Court a kitchen-table issue for voters. They want voters thinking not just about today's policy fights, but about a locked-in conservative majority running for decades if Trump fills one or two more seats. Whether that strategy works is debatable, because conservatives want to lock in a conservative majority on the court as much as Democrats want to stop it.
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"We must be clear eyed about what is at stake with the Supreme Court right now," twice-failed presidential candidate Kamala Harris wrote on X. "We cannot allow Donald Trump to hand pick one, if not two, additional justices. The nation's highest court must be stopped from becoming even more beholden to him."
There’s good news and bad news.
The good news is that Democrats have almost no formal tools to stop a confirmation if any vacancies occur this year. Republicans nuked the judicial filibuster for Supreme Court nominees back in 2017 after Democrats filibustered Neil Gorsuch. So a simple Senate majority is all it will take to confirm a Trump nominee to the court. Most big decisions of the current term will be issued in late June. If vacancies are going to happen this year, this summer will be the time.
The bad news is that if no vacancies occur before the midterms, and Democrats win the Senate — which is possible — Democrats could delay and obstruct the filling of a vacancy during Trump’s final two years in office. If Democrats go that route, they could theoretically leave a seat vacant for up to two years.
The left seems convinced that conservative justices won’t make the same mistake as Ruth Bader Ginsburg, and honestly, I hope they’re right. Look, we all love Clarence Thomas, and if we could clone him and keep him on the bench forever, I think we all would.
But insulating a conservative majority on the court for decades to come is what matters now. The left is in panic mode.
