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July 5, 2020

Dare criminal justice reformers imagine SCOTUS without both Justice Alito and Justice Thomas?

Because there are no more juicy criminal law or sentencing cases left on the SCOTUS docket as an unusual Term winds down, I cannot help but spend time speculating about the future of the Court.  In an election year, of course, that includes imagining who might be appointed (and might be doing the appointing) for the next four years.  But this recent Fox News piece, headlined "Supreme Court rumor: Hugh Hewitt claims Alito retirement being floated," has me eager to imagine some SCOTUS transitions in the coming weeks.  Here are the (silly?) details:

Supreme Court speculation season is kicking into high gear. Conservative radio host Hugh Hewitt told listeners Wednesday morning that according to his sources, Supreme Court Justice Samuel Alito is considering retirement.

This came on the heels of a Washington Post report that said Justice Clarence Thomas "is privately seen by Trump’s aides as the most likely to retire this year," though he's given no indication of doing so.

Hewitt mentioned the Alito rumor on his show while talking to the author of that article, Robert Costa, who also had written about conservatives’ disappointment with decisions where Chief Justice John Roberts sided with the court’s liberal justices.  Costa noted that President Trump and Vice President Pence have cited the recent cases as proof that more conservative justices are needed, as he discussed rumors of possible contenders should Thomas step down.

"The stronger rumor is that Justice Alito is going to quit. Justice Thomas will never quit," Hewitt countered. Alito is 70, so if he retires he could be replaced with a much younger justice who would theoretically have decades on the court ahead.

But it is not clear whether the rumor is just that. Others doubt that either Thomas or Alito will retire. "I would not bet a lot of money on either of those possibilities," a person familiar with the court told Fox News.

Any imminent retirement would be risky for conservatives in the election year. If the current GOP-controlled Senate could not push through a replacement for any vacancy in time, it runs the risk for Republicans that the next nominee would be selected by a Democrat, if Joe Biden were to win the presidency. Further, Senate Republicans are far from guaranteed to hold the majority in the chamber next year.

Costa’s report did note how the White House and Republicans in the Senate are supposedly gearing up for a possible Supreme Court vacancy, but that was in reference to speculation that Thomas may step down.

One outside political adviser to Trump reportedly told Costa that if an opening were to emerge, Senate Majority Leader Mitch McConnell, R-Ky., would be ready to act swiftly to get the nominee confirmed. A favorite of his supposedly is 6th Circuit Court of Appeals Judge Amul Thapar, who previously served as a federal district judge and U.S. attorney in McConnell’s home state.

Hewitt also named several possible replacements for Alito, including 6th Circuit Judge Raymond Kethledge, who had been considered a strong candidate in the past.

Though neither Judges Kethledge or Thapar would likely be consistent votes for criminal defendants if they were to become Justices, I suspect both would be more likely to follow the varied voting pattern of Justice Gorsuch in criminal cases (noted here and here) than to follow in the legacy of Justices Alito and Thomas.  On the current Court, Justices Alito and Thomas are always most likely to favor state criminal powers over defendants in just about every setting.  It think it hard to imagine that they could or would ever be replaced with anybody more likely to vote so consistently against criminal defendants.

But I am not really daring to imagine a SCOTUS without Justices Alito and Thomas.  I sense they both like their work, and they probably both have good reason to believe they could keep at it for many years, perhaps many decades, to come.  So I fear criminal justice reformers who want a path through the Supreme Court should plan for at least two oppositional Justtices for many more years.

July 5, 2020 at 11:35 AM | Permalink

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