SCOTUS Season
It's that time of year again. "SCOTUS season" has begun. The end of June is traditionally when the weightiest Supreme Court decisions are handed down, as the high court ends its judicial year and begins a summer break that will last for months. The weightiest of the decisions still yet to be announced will answer the question of whether the Fourteenth Amendment means what it clearly says it means or not, on the subject of birthright citizenship. Other high-profile cases will deal with Donald Trump's expansive view of executive power (including the power to fire anyone he wants for any reason he feels like). But the biggest news from the court this year may come right after their term ends.
The midterm elections are now a little over four months away. Democrats seem poised to make big gains in Congress, which could even include regaining control over the U.S. Senate. If this does happen, then come next January Democrats will control the chamber for the remainder of Trump's second term.
Which has to be weighing on the minds of two men in particular: Supreme Court Justices Clarence Thomas and Samuel Alito. Because they both will have a choice to make -- one they must make without knowing what the midterm election results will be. Should they continue serving on the high court, or should they announce their retirement?
The reason why they must be pondering this question is a simple one. Alito is 76 years old. Thomas is celebrating his 78th birthday today. Both men face the decision to stay on the bench and risk possibly opening up a seat if they unexpectedly die in office, or to step down now, while Republicans control both the Senate and the White House.
That's a hard choice to make. Walking away from the most powerful judicial position in the country in order to retire means becoming instantly irrelevant to the rest of the world. Staying means continuing to wield the power they have become accustomed to and enjoying the respect their position bestows upon them. It's a big step down from that to just being a retired judge, occasionally giving speeches to this group or that.
The political calculus is pretty obvious, though. If either Thomas or Alito announces their retirement right after this year's term ends, then it gives Donald Trump and the Republicans in the Senate plenty of time to nominate and confirm a successor that will continue the current ideological makeup of the court. Not retiring means risking that their seat could flip if they do die while still in office.
Trump, of course, will be president until January 20, 2029. He'll have two more years in office no matter what happens in the midterms. But if Democrats take the Senate, Trump may be prevented from seeing any of his Supreme Court nominees confirmed.
If Alito and/or Thomas decide not to step down but then suddenly die in the next two years, then a Democratic-led Senate is simply going to ignore any attempt Trump makes to replace them. And any Republican who complains about this situation will be flatly told: "Tell it to Mitch McConnell." He's the one who set up the current situation by refusing to even hold hearings on Barack Obama's nominee to the high court, and then later jamming through a confirmation hearing just before an election took place. McConnell playing hardball in such a fashion is quite likely to come back to bite Republicans, since Democrats will be in no mood to go back to the old (more non-partisan) way of confirming nominees.
Even if a seat opened up early next year, Chuck Schumer would be well within his rights to announce that the Senate wouldn't even consider any nominee until after another election intervened. This was the same logic McConnell used on Obama's nominee, and turnabout is fair play. If the Democrats win the White House in 2028, then this will flip the seat from conservative to liberal, and Republicans will only have McConnell to blame.
Of course, there are no guarantees. Democrats could win back the Senate this year but then lose control of it in 2028. A Republican could win the presidency in 2028. It's far from a sure thing that Democrats will even win the Senate this year -- that's going to be a very big hill for them to climb in November.
Which is why it is a tough decision for Alito and Thomas to make. If they resign now, it would mean guaranteeing that conservatives retain the majority on the high court for years to come. The Republican Senate we've got right now can be counted on to confirm some very young conservative replacements, probably before the midterm elections even take place. Thomas and Alito could even wait until after the midterms and then, if Democrats do win the Senate, abruptly resign so that the Republicans can hustle through their replacements during the lame-duck session before the new Senate is seated in January.
But then again, both men could live a long time and still be productive for years to come. Walking away from the most powerful judicial position in the country is not an easy choice to make, which is why justices do indeed occasionally die while still on the bench.
If both Alito and Thomas were to announce they're stepping down, then Donald Trump will wind up with a majority on the court that he personally nominated. That is rare. Even if only one of them retires this year, Trump will still have an outsized influence on the country's laws for a long time to come.
So while the next few weeks will be filled with headlines from the Supreme Court as all their most momentous decisions of the year are announced, I will be waiting to see if there are any big announcements made after their judicial year concludes. Because that might be the biggest news of all this year from the highest court in the land.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant

This is an interesting angle on Supreme Court politics that I haven't read anywhere else. Thanks for this piece.