JOHN YOO: The blue tsunami’s real target is the independence of the Supreme Court
The 2026 midterm's astounding election results not only shift control of Congress but also portend two years of hostility with President Donald Trump. The blue tsunami also threatens the independence of the Supreme Court.
As Democrats exercise their newfound power in the legislature and build on their majorities in years to come, they will try to interfere with the workings of basic American institutions. Of these promised "reforms," expanding the Supreme Court may pose the greatest threat to the American system of limited government and natural rights.
The Democrats’ landslide victory is hard to overstate. As many political observers predicted for a midterm election during a president’s second term, Democrats took control of the House from the governing party. But few foresaw the force of the rejection of President Trump and the Republican Party. With 24 races still to be called, Democrats have won 254 seats, surpassing the 218 needed for a majority, with Republicans left with only 157. The results in the Senate were perhaps even more shocking. Democrats flipped at least seven Senate seats, giving them a 54-44 majority; Democratic challengers narrowly lead the Republican incumbents in the other two races. What was equally amazing was that Democratic victories came in Republican strongholds, such as Kansas (where a Democrat had not won in a century), Texas, Iowa, South Carolina, and Ohio.
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Conservatives are panicking that the shift in control of the Senate will threaten their majority on the Supreme Court. Presidents George H.W. Bush and George W. Bush appointed three of the justices (Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito), while President Trump appointed three more (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). Presidents Obama and Biden, meanwhile, appointed three (Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson). This 6-3 majority, unified generally by an originalist approach to constitutional interpretation, has delivered some of the highest priorities on the conservative wish list: the overruling of Roe v. Wade and the return of the abortion question to the states; the declaration of the Second Amendment’s individual right to possess firearms; and the end of racial preferences in government programs and university admissions.
The problem, simply put, is time. Thomas is 78, while Alito is 76. For justices appointed since 1980, the average age at retirement or death in office is 79.8 years. If Thomas or Alito were to leave office over the next two years, which would be in keeping with that average, the Democratic majority would be unlikely to confirm their successors. Sen. Mitch McConnell, R-Ky., has already set a precedent of not filling a Supreme Court vacancy in the last year of a presidential term — he did not allow a Senate vote to fill the 2016 vacancy created by Justice Antonin Scalia’s death. It would be a small political jump — though a serious change in Senate norms — for Democrats to extend that period to two years. The change in Senate control in January means that no conservative justice is likely to retire until 2028.
In the interest of full disclosure, I served as a law clerk to Justice Thomas in 1994-95, and I do not want him to ever retire. Indeed, I would be shocked if he left office while he could physically perform the duties of the office.
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The political changes launched by the midterm elections could make matters worse for conservatives. The betting odds are that Democrats will win the 2028 presidential election. An incumbent party usually loses at the end of its president’s second term in office. Putting aside the unique control of the Virginia dynasty from President Thomas Jefferson through James Monroe, a two-term presidency has only been succeeded by a president of the same party twice: Martin Van Buren and George H.W. Bush. Both examples reflected the popularity and success of the departing incumbents, Andrew Jackson and Ronald Reagan. If anything, last week’s tallies reveal Trump’s deep unpopularity. It would require an unprecedented election to beat this historical pattern and return a Republican to the presidency in 2028. And even if Vice President JD Vance or Secretary of State Marco Rubio were to win, they would likely still face a Democratic Senate, which would narrow, if not completely eliminate, their ability to appoint a committed originalist to the Supreme Court.
The prospect of Democratic control of the Senate and possibly the presidency for the next six years has prompted short-term maneuvering to install a young originalist on the Court during the lame-duck congressional session over the next few weeks. Justice Alito, however, has publicly declared he will not retire this year, and, as I have said, I would be shocked if Justice Thomas were to even entertain the idea. The idea that President Trump could persuade either justice to retire in favor of a younger replacement is more characteristic of inside-the-Beltway politicking than of serious long-term political thinking.
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Focusing on the justices’ ages and retirement dates distracts from the much more serious threat to the Court. If the Democrats were to build on their majorities and win the presidential election in 2028, we may well see not just different faces on the bench — we may see an entirely different kind of Court altogether.
Almost every leading Democrat demands "reform" of the Supreme Court by expanding its size from nine to 13 or more justices. Several members of the House and Senate, such as Rep. Jerry Nadler and Sen. Adam Schiff, have introduced bills to add more justices. Leading presidential candidates, such as former Vice President Kamala Harris and Rep. Alexandria Ocasio-Cortez, D-N.Y. have blessed the idea of court-packing. Rep. Ro Khanna, D-Calif., expressed the feelings of left-wing Democrats well: "We need to expand this morally bankrupt court from nine to 13."
Democratic control of Congress will build powerful momentum toward court-packing. Expect House and Senate majorities to send court-packing bills to the Resolute Desk in the Oval Office for signature. While President Trump will surely veto them, as he should, the Democratic Congress will not pass the bills in the hope they will become law in the next two years. Instead, they will force House and Senate members to take public votes on court-packing in preparation for the real show, which will take the stage when a Democrat wins the White House in 2028.
Once progressives have a governing trifecta, court-packing legislation will sail through both houses again and meet with the approval of a Democratic president. The Supreme Court will become the political plaything, not just of Democrats, but of both parties, which will surely add more seats to the Court whenever they control both elected branches of government. That will do more in the long run to destroy the independence of the federal judiciary, on which our natural rights against the tyranny of the majority rest, than any short-term maneuvering over justices and their retirement dates.