Will there be a Supreme Court vacancy in 2026? The November midterms are inching closer—and with them, the slim but growing prospect of a Democratic Senate majority next January. If any conservative justices want to guarantee that a conservative president nominates their successor, their window to get out while the getting is good is closing fast.
Of the court’s two eldest members, it is considered unlikely that Justice Clarence Thomas will step down any time soon. The 77-year-old justice has signaled both publicly and privately that he will not retire from the court while he can still work. In 1993, The New York Times reported that Thomas, who was fresh off his bruising confirmation battle at the time, planned to serve on the court until 2034. “The liberals made my life miserable for 43 years, and I’m going to make their lives miserable for 43 years,” he reportedly told a clerk.
Justice Samuel Alito, on the other hand, may be closer to retirement. CNN’s Joan Biskupic reported last December that Alito was “pondering” stepping down. It is well known that the 76-year-old justice’s wife Martha-Ann is eager for him to retire, as she acknowledged in a surreptitiously taped conversation at a Supreme Court event last year. Alito’s planned book release later this year, as well as his recent hospital visit for an unspecified health issue last month, also drew renewed attention to his potential return to private life after a victory lap of sorts.
If Alito retires this year, it would not significantly alter the court’s overall ideological balance. Trump would be swapping out one conservative justice for another. At the same time, installing a younger justice would further cement the conservative majority’s long-term grip on the Supreme Court by preventing a vacancy from opening up under a Democratic presidency, barring structural reforms and expansion. Otherwise, the continuation of the conservatives’ 6-3 majority could seriously frustrate liberals’ plans to enact a post-Trump agenda, even with a sizable congressional majority.
At the same time, Trump’s second-term Supreme Court nominee could be unlike anyone that he previously appointed to the high court. The Republican Party remains firmly in his grip, with GOP senators confirming a wide range of unqualified and controversial Cabinet officials and agency heads over the past year. Trump’s only failed Cabinet nomination wasn’t even a rebuke to Trump: Senate Republicans simply loathed former Florida Representative Matt Gaetz, his first pick to be attorney general, on a personal level.
Though much of the conservative legal establishment’s agenda is now fused with Trumpism, the president may prove to be less deferential towards the movement’s stable of nominees than during his first term. Trump’s second term so far is characterized by rewarding personal sycophants with appointments to high office, demands for personal loyalty from nominees, and an expectation that Supreme Court justices in particular should be more deferential towards him.
Who could Trump nominate? During the 2016 campaign, Trump won over legal conservatives like Texas Senator Ted Cruz, a bitter primary rival, by releasing a shortlist of conservative judges and lawyers that he would appoint to the Supreme Court if elected. By 2020, there was no shortlist because Trump’s appointments had proven his fidelity to the conservative legal movement. After 2024, however, Trump’s own personal interests are likely to be forefront in his mind.
Beyond their conservative bona fides, the most important quality will be youth. Gone are the days when presidents would nominate 60 or 70-year-olds to the nation’s highest court. Youth is a guarantee of longevity, which in turn promises both jurisprudential impact and ideological control. Trump’s first three choices were in their late 40s or early 50s when nominated, with Justice Brett Kavanaugh marking the upper bound at 53 years old. A child born today can expect them to still be handing down rulings when he or she starts college.
Some of Trump appointees to the federal appeals courts could fit that bill. Judge James Ho, who serves on the Fifth Circuit Court of Appeals, has been a reliably conservative vote on a reliably conservative court, though his past writings defending birthright citizenship might hurt his chances. He and two other Fifth Circuit Trump appointees, Andrew Oldham and Kyle Duncan, issued a panel opinion on mail-in ballots—a perennial Trump complaint—that some court watchers read as an audition for a Supreme Court vacancy. All three men are in their mid-50s.
Trump’s first-term appellate court picks are the most likely source of future Supreme Court nominees. All three of his first-term picks served on appeals courts, and presidents from both parties tend to prefer them in the modern era. Some potential choices include the D.C. Circuit’s Judge Neomi Rao, a staunch supporter of the unitary executive and Trump’s war on regulatory agencies, or the Sixth Circuit’s Amul Thapar, who recently wrote a disturbing opinion that claimed that non-citizens did not possess constitutional rights.
Beyond more conventional conservative nominees, Trump could choose someone more unorthodox and inflammatory for a Supreme Court vacancy. Trump nominated the 49-year-old Judge Matthew Kacsmaryk to a district-court judgeship in northern Texas in 2019. From that perch, the judge became a favored venue for right-wing litigants seeking a guaranteed appearance before a friendly ear. In perhaps the most famous instance, Kacsmaryk struck down the FDA’s approval of a popular abortion drug, only to be overturned on appeal by the Supreme Court.
If Trump wanted to install someone who shared his penchant for violating judicial norms, he might be inclined to choose Judge Lawrence VanDyke, whom he appointed to the Ninth Circuit in 2020. The American Bar Association urged senators not to confirm VanDyke during the confirmation process, describing him as “not qualified” and, in unusually hostile terms, as “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.”
VanDyke has spent his brief judicial career proving his critics right by insulting litigants and his colleagues with bombastic, unprofessional dissents. In a 2022 opinion on California gun restrictions, he mocked other judges on the court by writing a concurring opinion to his own panel opinion that derided how he thought they would rule on the case. In another Second Amendment case, he claimed that his colleagues couldn’t understand the value of gun rights because they are surrounded by armed security at their “upper middle class homes.”
The most egregious example came last month when VanDyke dissented from a case involving transgender patrons at a Korean spa in Washington state. “This case is about swinging dicks,” he wrote in the opening line of his dissent, where he denounced “woke regulators and complicit judges” for imposing “Frankenstein social experiments” on “real women and young girls.” The crude, bigoted dissent drew rebukes from more than 25 other Ninth Circuit judges, including Democratic and Republican appointees alike. “We are better than this,” read one concurring opinion in its entirety.
Perhaps the only quality that Trump prizes more than trolling his foes, however, is personal loyalty. A Supreme Court vacancy would be a unique opportunity to reward judges and legal advisors who championed him in the courts. Trump’s Justice Department appointments during his second term reflect that mindset: Nearly all of the department’s top appointees worked as Trump’s personal lawyers at one point, and were duly rewarded for it with high-profile legal jobs.
Two potential nominees would fit that bill. One is Emil Bove, the Third Circuit judge who worked in the Trump Justice Department for roughly half of 2025. Bove is notorious for his role in two of the Trump administration’s biggest legal scandals to date. Shortly after Trump took office, he played a key role in the White House’s scheme to use a Biden-era corruption probe to coerce then-New York City Mayor Eric Adams into cooperating with federal immigration enforcement. A few months later, he reportedly helped deceive a federal judge about extralegal deportations to a gulag in El Salvador. Trump rewarded him with a lifetime federal judgeship of his own for his work.
Perhaps no federal judge has done more for Trump, however, than Judge Aileen Cannon in Florida. The district-court judge received her current position on the bench from Trump in 2020, then played a key role in undermining the Justice Department’s criminal investigation into Trump’s alleged theft of classified material and illegal storage of it at Mar-a-Lago. Among Cannon’s favorable rulings for Trump were a decision that Special Counsel Jack Smith’s appointment was illegal and an order that barred his final investigative report from being released to the public.
In a more honorable age, neither Bove nor Cannon would be considered for elevation to the nation’s highest court. As long as Trump’s interests tilt towards harming his enemies and rewarding those who do his bidding, they are likely prospects for a Supreme Court vacancy should one arise while Republicans still control the Senate. Trump’s own recent criticism of the specific justices who ruled against him on tariffs—and his lavish praise for those who sided with him—underscores the kind of qualities he seeks in an ideal Supreme Court justice. Expect more of the same—but much younger.
