July 20, 2017
by John Kaempf

One or more additional U.S. Supreme Court vacancies could occur during President Trump’s at least one term in office.

This year, deceased U.S. Supreme Court Justice Scalia was replaced by Justice Neil Gorsuch, who was nominated by President Trump. Justice Gorsuch has already shown himself to be a supporter of religious freedom, as discussed elsewhere in this newsletter.

Currently, the nine-member Court consists of 5 conservative justices and 4 liberal justices. Justice Kennedy is generally conservative, but is often an unpredictable “swing” vote. For example, he voted with the majority in the 2015 Obergefell decision legalizing same sex marriage nationwide.

Based on the age of several justices, President Trump may have the chance to tip the balance of the Court through additional appointments to the Court.

Justice Kennedy seems most likely to leave the Court next. He turns 81 in July 2017. Also, there is a tradition of justices retiring during the administration of the same party as the president who appointed them. Justice Kennedy was appointed by President Reagan, a Republican like President Trump. Also, Justice Gorsuch was once Justice Kennedy’s law clerk. Therefore, some feel that Justice Kennedy may see Justice Gorsuch’s ascension to the Court this year as a sign that it is time to move on. Perhaps most significantly, NPR reported in July 2017 that Justice Kennedy has told law clerk applicants for the 2018-2019 term that he is “considering” retirement. Thus, many believe that Justice Kennedy will retire during President Trump’s administration.

Justice Ginsburg, appointed by President Clinton, is 84 and has had health problems the last few years.

Justice Breyer, also appointed by President Clinton, is 78.

Therefore, Court watchers anticipate more Court vacancies in the next three to four years, and replacing a liberal justice with a conservative that President Trump will undoubtedly nominate, thereby changing the balance of the Court, should set off an explosive political battle given that the U.S. Senate must approve nominations to the Court.