By Jan Wolfe
WASHINGTON, Oct 3 (Reuters) – The new US Supreme Court term that begins on Monday presents opportunities for its two eldest and most conservative justices, Clarence Thomas and Samuel Alito, to help push US law further rightward on contentious issues such as gun rights, religion in public schools and voting restrictions.
Thomas, 78, has served on the top US judicial body since 1991, making him the second-longest-serving justice in American history. Alito, 76, has served since 2006.
Earlier in their tenures, they often found themselves in dissent in major decisions, but the court, with a 6-3 conservative majority since 2020, has shifted dramatically to the right. Thomas and Alito now are perhaps at the height of their influence and have been lavished with praise by Republican President Donald Trump.
‘WHY LEAVE?’
If either were to retire, that would clear the way for Trump to appoint a younger conservative replacement who could serve for decades in the lifetime position. But, at least for now, according to legal experts, they appear more interested in wielding that power than stepping aside.
“They have been waiting for a long time to be in the position,” Kevin McMahon, a political science professor at Trinity College in Connecticut, said of Thomas and Alito. “So why leave?”
During the court’s term that ended in June, Thomas and Alito helped deliver long-sought victories to the conservative legal movement. These included a ruling expanding presidential control over regulatory agencies, and a decision further limiting the scope of the Voting Rights Act, the landmark 1965 law intended to eliminate racial discrimination in voting.
Thomas and Alito have been Trump’s most reliable votes in cases involving his extraordinary exertion of presidential powers. More such cases are coming during the new nine-month term, including two involving Trump’s hardline immigration policies.
The court’s docket also includes November 3 arguments in a challenge to a Colorado law requiring preschools receiving taxpayer money to enroll children of same-sex couples, the latest clash between religious rights and LGBT protections to reach the justices.
The justices also may take up a case examining whether a Texas law that requires public elementary and high schools to display the biblical Ten Commandments in classrooms comports with the US Constitution’s prohibition on the government establishing or endorsing any particular religion or promoting religion over nonreligion.
On December 2, the court will hear arguments over whether states can ban AR-15s and other semiautomatic rifles, an opportunity for the conservative justices to further expand gun rights. Thomas and Alito have been instrumental in major guns rulings since 2008.
On December 8, the court will consider whether Arizona can mandate that people registering to vote provide proof of citizenship, a Republican-backed measure that critics have called an effort to make it harder for groups who tend to support Democratic candidates to register.
Legal experts said these cases give Thomas and Alito opportunities to build on some of their most influential earlier rulings and further chip away at Supreme Court precedents they consider misguided.
“They have more they want to accomplish, and I expect them to keep pushing on a host of issues,” McMahon said, adding that they even may envision themselves serving as a check on a potential future Democratic president beginning in 2029.
“They’re still in their seventies,” McMahon said. “And for a Supreme Court justice, it’s not unprecedented that you stay on the bench well into your eighties.”
‘LEGENDS, BOTH’
Thomas and Alito backed every major Trump administration policy that came before the court last term, unlike the three conservative justices Trump appointed during his first term — Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020. Those three all have compiled very conservative records on the court but in a few major cases sided against Trump.
Trump told Time magazine this week he regretted nominating all three of them, calling them disloyal.
“I gave them the position of a lifetime, and they vote against me often,” the Republican president said.
Thomas and Alito, on the other hand, are “legends, both,” Trump said last month after they dissented from a decision that blocked his plans to restrict mail-in voting.
“Alito and Thomas are the two who have figured out how to never get into Trump’s doghouse,” University of Minnesota political science professor Timothy Johnson said.
Alito rejected the notion that he is a rubber stamp for Trump and his administration, telling the Wall Street Journal in August: “I vote in every case the way I think the case should be decided. If that means a high correlation with what Trump wants, fine. If it means zero correlation with what Trump wants, fine as well.”
RETIREMENT RUMORS
Speculation among court watchers about a possible vacancy has ramped up as the two men draw closer to the average age of retirement for Supreme Court justices since 2000 — about 80 years old — and with the November 3 US congressional elections looming.
If Democrats take control of the Senate, they could try to block Trump’s nominee to fill any vacancy created by the retirement or death of a sitting justice.
Alito tamped down retirement speculation for now, telling the Wall Street Journal: “Obviously, I’m here for another term.”
The term runs through the end of June.
Alito feels he is “making a unique contribution” to the court, said Peter Canellos, author of a recent Alito biography titled “Revenge for the Sixties.”
“A lot of the action on the Supreme Court right now is conservative on conservative. It’s entirely a discussion among conservatives,” Canellos said. “Alito has a lot of influence in those conversations.”
“If a Democrat were to succeed Trump, Alito would be committing to six years on the court, at least, until Republicans would have another chance to appoint a conservative replacement,” Canellos said. “He’s 76 years old. He’ll be 82 in six years, and he may have made the calculation that he can make it.”
ABORTION RIGHTS
Canellos said Alito’s influence was highlighted by Dobbs v. Jackson Women’s Health Organization, perhaps the most important ruling he has authored. It overturned the 1973 Roe v. Wade precedent that had recognized a woman’s constitutional right to have an abortion.
Chief Justice John Roberts, a stalwart conservative, dissented from the portion of Alito’s ruling that reversed Roe.
“I think over the years Alito has thought of himself as an instrumental justice,” Canellos said. “You can see in many cases, Dobbs included, that his key ability is to bring the three Trump appointees to his side, rather than Chief Justice Roberts’ side, when the two of them disagree.”
In Dobbs, Gorsuch, Kavanaugh and Barrett joined Alito.
“I suspect that Alito felt that even if he were replaced by a true conservative, which was the core of the argument why he should resign, it was not in any way preordained that that person would have the kind of influence that he has,” Canellos added.
Alito has long criticized a 1990 Supreme Court precedent that limits the ability of people to seek religious exemptions from generally applicable laws. Religious rights advocates have said that ruling infringes on First Amendment protections for free exercise of religion. The 1990 ruling specifically held that the First Amendment does not protect people who participate in illegal acts — in that case, the use of an illegal hallucinogenic drug — as part of a religious ceremony.
The religious freedom case being argued in November, called St. Mary Catholic Parish v. Roy, gives Alito and the other conservative justices a chance to cast doubt on the 1990 precedent, known as Employment Division v. Smith.
‘WHY NOT CONTINUE?’
The case involving state-level bans on assault-style rifles may give Thomas a chance to clarify a test he laid out in one of his most impactful rulings, a 2022 case called New York State Rifle & Pistol Association v. Bruen.
Under this test, gun control measures must be “consistent with this nation’s historical tradition of firearm regulation” — not simply advance an important government interest — in order to comply with the Second Amendment right to keep and bear arms. Some judges have said this wording does not provide clear guidance, producing inconsistent results.
“He has clearly expressed frustration that his colleagues have dodged reviews of assault-weapon prohibitions, making these consolidated challenges from Connecticut and Illinois a long-sought vehicle to establish a nationwide constitutional rule that includes these specific guns,” Johnson said of Thomas.
Thomas has not addressed retirement rumors, but in the past has hinted at a lengthy tenure.
McMahon said Thomas may want to become the longest-serving justice, a milestone he would reach in May 2028.
“If you’re that close, and you have the setup that he has, why not continue?” McMahon asked.
(Reporting by Jan Wolfe in Washington; Editing by Will Dunham)
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