Democrats won big in Tuesday’s midterm elections, flipping at least 40 seats in the House and at least seven in the Senate. Come January, the Democratic Party will control both houses of Congress, which will allow it to set policymaking priorities and play a lead role in shaping the future of the Supreme Court.
Most immediately, the power shift in the Senate will complicate (if not effectively eliminate) President Donald Trump’s ability to appoint another justice to the Supreme Court, should a vacancy arise after the new Congress is seated. The Democratic Party will have enough votes to reject a nomination – if it even allows confirmation hearings to proceed.
The election results also increase the likelihood that Congress will pursue some sort of court reform. Several Democratic leaders have voiced support in recent months for imposing new ethics rules or term limits on the justices or expanding the size of the court. However, in the short term, actually passing their more ambitious reform proposals may remain out of reach for Democrats, because the party does not have enough votes to overcome a filibuster in the Senate or a veto from Trump.
On top of these potential outcomes, the nature and volume of the Supreme Court’s work will likely be affected by Democratic wins at the state level, particularly in Texas. Under Republican leadership, the Lone Star State has spent years pursuing challenges to Biden-era regulations and Supreme Court precedent. Democratic state officials will have different priorities and may even abandon cases brought by their predecessors.
Delaying retirements
Long before voters headed to the polls, the potential for this year’s elections to affect a future Supreme Court confirmation battle was in the news, which helped fuel the retirement rumors that surrounded Justice Samuel Alito last spring. Although Trump at one point expressed support for Alito remaining on the bench, other Republicans questioned whether Alito, who is 76, would become, under a potential future Democratic presidency, another Ruth Bader Ginsburg, who died during Trump’s first term after resisting calls to retire while President Barack Obama was in office. (At 78, Justice Clarence Thomas is older than Alito, but he hasn’t faced as much pressure to retire, perhaps because he has given no indication that he intends to do so and is less than two years away from becoming the longest-serving justice in Supreme Court history.)
During a media tour this fall for his new book, Alito addressed the rumor mill surrounding his possible retirement. In an interview with CBS News, he acknowledged that he thought about retiring last term, though he didn’t connect that thinking to election season. Instead, he said that retirement is “something I think that somebody at my age has to think about every term.” Alito also said that the outcome of the midterms wouldn’t change his decision. “I intend to stick around through this term,” he told Bloomberg.
On Wednesday, The New York Times reported that Alito had confirmed his intent to remain on the court. According to two sources close to him, the paper said, Alito indicated in conversations “with friends after the election results were clear this week” that he “does not intend to immediately announce his retirement.”
Even if Alito were to do so, some commentators believe an effort by Trump to replace him would be doomed, in large part because at least a handful of Republican senators, including some whose reelection bids were unsuccessful, may refuse to support a Trump nominee at this point. A nominee would need at least 50 votes to be confirmed (because Vice President JD Vance could break a tie in the nominee’s favor).
As noted above, once the new Congress is seated in January, Democrats in the Senate will control whether a future Trump nominee is even considered and will have the votes to reject such a nominee if confirmation hearings do take place. In a post for his Substack, Ed Whelan cited this reality in explaining why he believes retirement is now off the table for Supreme Court justices for at least the next two years. Similarly, Florida Gov. Ron DeSantis, a Republican, posted on X that the “[c]hance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term” is now “Zero.”
Even if a Republican president is elected in 2028, conservative justices are unlikely to retire, according to Whelan, because Democrats “very likely” will remain in control of the Senate. “If Clarence Thomas and Samuel Alito want to avoid being replaced by someone with a very different judicial ideology, they might not be able to retire before 2033,” he wrote. “Justice Thomas will turn 85 in 2033. Justice Alito will turn 83 that year.”
On the other hand, if a Democrat is elected in 2028, Whelan believes he or she “will have an easy time getting a Supreme Court nominee confirmed.” And he instructed his readers not to “discount the possibility of involuntary vacancies that could significantly alter the ideological composition of the Court.”
Raising the likelihood of court reform
Just as Alito’s retirement plans have been in the news for months, there has been an ongoing debate over Supreme Court reform. Democratic leaders responded to last term’s most controversial rulings – including decisions weakening a central provision of the Voting Rights Act and limiting Congress’ ability to prevent the president from removing the heads of some federal agencies – by looking for ways to break up the court’s conservative supermajority, whether by expanding the size of the Supreme Court or ending life tenure for justices.
In the new Congress, Democrats will have the power to ensure that these reform proposals and others actually get a hearing, but their power may not extend beyond that point. As noted above, the party will not have enough votes in either chamber of Congress to overcome a presidential veto.
Democrats might find more success with proposals that address ethics concerns rather than the composition of the court. In July, Sen. Chris Murphy, a Democrat from Connecticut, introduced a bill co-sponsored by several other Democratic senators that would create outside enforcement mechanisms for a Supreme Court code of ethics and also require justices to explain their recusal decisions. The Marquette Law School Poll reported in September that the concept of “[e]nforcing a strict ethics code for the justices is nearly universally popular, favored by 89% and opposed by 10%” of U.S. adults.
Although it’s unlikely that Democrats will be able to fully overhaul the Supreme Court while a Republican is in the White House, the possibility of that obstacle disappearing after the 2028 presidential election may prompt immediate changes at the court itself, according to Steve Vladeck. In a post for his Substack, he suggested that “the increasingly serious specter of Court reform” may lead conservative justices to seek to avoid controversial, ideological rulings in hopes of improving Democrats’ views of the court. “If, instead, the rest of this Term and the October 2027 Term include more of the same (an ongoing run of 6-3 rulings further shifting our jurisprudential center of gravity to the right), they’ll have no one but themselves to blame for what a unified Democratic government might decide to do about it,” Vladeck wrote.
And Democrats will not need to pass a reform bill to return to ethics investigations that were underway when Trump was elected and that ended when he took office. The investigations centered on undisclosed gifts received by Thomas and Alito and the court’s approach to tracking potential conflicts of interest. As Vladeck put it, “[m]ore oversight is certainly incoming.”
A smaller role for Texas
In addition to potentially changing the calculus for retirement decisions and reform efforts, the midterm election results may alter what types of cases are appealed to the court – or at least where they are appealed from. That’s because the blue wave brought major changes to Texas, a state that’s known for bringing challenges to Democratic policies to the Supreme Court.
Indeed, in recent years, Texas has served as “the locus of the Republican Party’s quest to shape policy through litigation, especially during Democratic presidencies when Republicans could not use the US Department of Justice to bring cases,” according to Vox. “Republicans have used their control over the state AG’s office to shape everything from immigration policy, to environmental regulation, to who receives overtime pay.”
Just last month, the Supreme Court on its interim docket considered a request from three cities with substantial immigrant populations to pause a legal agreement between Texas and the Trump administration that threw out a Biden-era regulation allowing immigration judges to suspend certain deportation proceedings. (On Oct. 27, the Supreme Court denied the cities’ request.)
Texas has also been involved in efforts to pressure the court to revisit past rulings in such areas as religious freedom and the death penalty. For example, last year it passed a law requiring public schools to hang Ten Commandments posters in their classrooms, which appeared to be in direct conflict with the Supreme Court’s 1980 ruling in Stone v. Graham striking down a similar law in Kentucky. The Supreme Court is expected to decide whether to take up a challenge to that Texas law by early next year.
However, once Texas Attorney General-elect Nathan Johnson, a Democrat, replaces outgoing Attorney General Ken Paxton, Texas’ federal litigation strategy will change, as Johnson told NBC News on Wednesday. “The MAGA movement looked at Texas as their own private law firm, which happens to have been publicly funded, which I would call corrupt,” he said. “My approach will be quite different.” According to NBC News, Johnson “intends to change course on some ongoing litigation too,” including the Ten Commandments case. The Texas government’s priorities will likely also shift, as Democrats took control of the House and governor’s mansion.
Of course, the blue wave did not turn every state solicitor general’s office blue, so plenty of red states (Florida?) remain to fill Texas’ shoes/cowboy boots and challenge Democratic policies, as Gabe Roth, executive director of Fix the Court, noted during a live briefing for SCOTUSblog Plus members on Wednesday. But many of these other, smaller red states will likely have fewer resources to draw on in this effort and won’t be as well-positioned as Texas was.
At the very least, this week’s midterm elections served as a reminder that, although Supreme Court justices aren’t elected to their positions, they are not immune from election outcomes.
