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Keeping That SCOTUS Majority May Mean Some Hard Choices, And Soon

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.
(AP Photo/J. Scott Applewhite)

It just takes a cursory look at the ages of current Supreme Court justice to notice that Democrats have a distinct disadvantage, for now. That’s because its two oldest justices, Ruth Bader Ginsburg at 86 and Stephen Breyer at 80, are both long past the time when normal working folks typically trade in their work boots for fedoras and beach sandals.


But SCOTUS is no ordinary job, and these are not ordinary times. Both Ginsburg and Breyer know the politics behind any potential retirement plans, and both are doubtless planning to cling to their jobs like a pair of good dentures until it’s no longer humanly possible, or a Democrat is elected president, whichever comes first.

After Ginsburg and Breyer the age count drops a decade, and next up is conservative Clarence Thomas at 70, and after him another Republican appointee, 69-year-old Samuel Alito. With Roberts (Republican) and Sontomayor (Democrat) both virtual spring chickens at 64, barring something unforeseen, any thoughts of the court’s immediate future likey rests on its four oldest justices. 

Should President Donald Trump get another SCOTUS pick, the conventional wisdom says it’ll likely be to replace Ginsburg, whose health problems of late have had Democrats pledging to donate any organ necessary to keep her alive and ticking. However, after a brief health scare, the Nortorious RBG is back on the bench, seemingly as strong as ever. While I certainly wish Justice Ginsburg a long and happy life, I also wish she would just retire already. But she’s a tough old bird, that one, with a workout routine that would have most of us eating her dust. Most of all, she’s an idealogue with a mission to NOT allow conservatives to gain a 6th justice, and thus an overwhelming majority even should the squirrely-of-late Roberts decide to pull a belated “David Souter” on America. It’s a dedication and a thought process I actually admire, and hope conservative justices share. 


For his part, Thomas had conservatives on edge last week when he had to quash his own retirement rumors. "I have no idea where this stuff comes from," he said in response. "One of the things you have to get used to in this business ... is that people can say things about you and for you that have nothing to do with you."

Fox News reported that the court’s only black justice - who would set an impressive court record as the longest serving ever in 2028 (take that, libs) - has no plans to retire “even in 20 or 30 years.”

If true, that’s great. But where did the rumors come from? As a conservative, I’d be lying if I said that even rumors of Thomas’ retirement make me more than a little nervous. Consider where we were in mid-2016, just before Donald Trump won his improbable victory: Anthony Kennedy was the liberal-leaning “middle” vote, but originalist stalwart Antonin Scalia had just died unexpectedly, leaving only three conservatives on the court (yes, I’m generously calling Roberts a “conservative”). Leftists were just one election away from having a 5-4 majority, and if Kennedy had retired, a 6-3 super-majority. In an age where the courts unconstitutionally but nevertheless de facto rule, where some district judge in Arizona can legislate virtually anything from the bench, America was just a few thousand rust-belt votes away from essentially being over.


But thankfully - and I believe Providentially - despite the liberal media, the loony left and the hand-wringing squishy “Never Trump” faux-conservatives, Trump did win, and we were rescued from the brink. Has everything gone smoothly? Of course not. Sure, the borders are still a sieve, but if you think a Democratic president wouldn’t have thrown them wide-open, I’ve got an Arizona fence section signed by Hillary to sell you. No, not everything has gone as we would have liked, but even the squishys are on board with the two SCOTUS seats and Trump’s record-setting pace of lower court confirmations. It’s unprecedented, and it’s something that will make the next Democrat presidential victory slightly more bearable. After all, conservative know how to challenge executive actions through the courts too.

So yeah, we’re exponentially better off now than we would have been had Hillary won, even if Trump loses in 2020. Nevertheless, getting complacent would be a yuge mistake. A year and a half from now, there’s a 50-50 chance we could be dealing with just that - a Democratic presidential victory. Should Ginsburg and Breyer both retire at that point, age will be replaced with youth and the clock will again be on the left’s side. Sure, we’d presumably still have five justices, but should one of those decide to retire or be forced by a medical setback to step down, we’ll be right where Democrats find themselves now.


If I could wave a magic wand and get a message to Justice Thomas, I would say this: 

You’ve had a remarkable run and we’re forever in your debt. If you’ve got 20 or 30 more years in you, more power to you. However, if there is anything at all to those rumors, and you’re even thinking about retirement, please consider doing it in the next year, when you can be safely replaced by a younger conservative justice.

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