The 2026 midterm results dramatically reshaped Congress and more than a dozen state governments, fueled by an immense backlash against President Donald Trump and his party. They have also drastically changed the landscape for the future of the Supreme Court and the federal judiciary.
Democrats are currently poised to obtain a majority of at least 54 seats in the U.S. Senate, far surpassing most expectations going into Election Day this week. (Alaska and, if you can believe it, Mississippi are currently too close to call.) They overcame an extremely difficult map to put themselves firmly in control of the upper chamber. Had the party only won 50 seats, Vice President JD Vance’s tie-breaking vote would have given the GOP a functional majority. A 51-vote Democratic majority would have raised concerns that Pennsylvania Senator John Fetterman, who has increasingly sided with Trump in recent years, might defect from the party. (He is up for reelection in 2028.)
Winning in 2026 has profound implications for the stakes of Senate elections in 2028 and 2030, as well. Only one-third of the Senate is up for reelection at a time every two years. Let’s hypothesize that Republicans manage to hold on in Alaska and Mississippi and the Democrats stay at 54 seats. Under that scenario, there is no obvious path for the GOP to retake the Senate in 2028. Of the 16 Democratic-held seats that will be up in two years, they are predominantly in deep blue territory. Only five seats are in states that Trump won in 2024: Arizona, Georgia, Nevada, Ohio, and Pennsylvania. All five of those states swung hard against Trump on Tuesday night.
Republicans would have to either run the table in those five races to get an outright Senate majority or win four of the five seats and hold the presidency. That is a daunting ask after Tuesday’s results. The Ohio seat will be contested by Senator-elect Sherrod Brown, who is currently ahead by a quarter-million votes with 95 percent of precincts reporting. (His victory this year was to fill out the remainder of the term vacated by Vance two years ago.) Georgia voters will be asked to reelect Senator Raphael Warnock after already giving him a full six-year term in a difficult cycle for Democrats in 2028. With Trump’s lame-duck twilight already underway, it is extremely unlikely that the national political environment will be as favorable for the GOP as it was in 2022 or 2024.
Things only get worse for Republicans from there. If the GOP doesn’t retake the Senate in 2028, it will be almost impossible in 2030. That cycle’s map is as formidable for Republicans as this year’s map was for Democrats. Only two of that year’s seats—the other Arizona and Nevada seats—are held by Democratic senators in states that Trump won in 2024. The rest are in sapphire-blue states, most with incumbents who would be hard to dislodge.
Whoever wins the presidency in 2028 will have a profound impact on the 2030 electoral landscape, of course, and it is perilous to comfortably assume anything that far out. (At this point after the 2018 midterms, for example, the Covid-19 pandemic was beyond anyone’s imagination.) But for GOP officials looking ahead in the cold light of day right now, there is little reason for optimism. All of this math also gets considerably more brutal if Democrats pick up the uncalled Senate seats in Alaska and/or Mississippi.
Four other things beyond the basic math of Senate control stand out. First, a 54-seat Democratic majority blocks Trump from nominating new conservative judges to the upper federal courts in 2027 and 2028. This will be the first time that the White House and the Senate have been held by different parties since Republicans captured the chamber for the final two years of Barack Obama’s presidency more than a decade ago. Republicans only confirmed 30 Obama nominees to federal judgeships in 2015 and 2016, and only in cases where they had significant bipartisan support.
But the GOP also famously refused to hold a vote on Merrick Garland’s Supreme Court nomination to replace the late Antonin Scalia in 2016. Judicial confirmations at all levels have become increasingly partisan affairs since then. Democrats will likely invoke the Garland precedent for the next two years to refuse to confirm any conservative nominee to the Supreme Court or, at minimum, to an important federal appeals court. If you are a red-state attorney general or a conservative law professor, the doors just closed on any chance that you’ll become a federal judge anytime soon.
Second, the results could lead to a much more aggressive Senate Judiciary Committee. Illinois Senator Dick Durbin, who did not run for reelection this year, would have returned as chairman after spending the last two years as ranking member. Durbin ran a fairly cordial committee in the Biden years. Rhode Island Senator Sheldon Whitehouse, the next-seniormost Democratic member of the committee, is a much more outspoken critic of the Supreme Court’s conservative majority, as well as the conservative legal establishment and the “dark money” donors that prop it up.
Whitehouse has proposed legislation in recent years that would require the high court to adopt a binding code of ethics, stricter recusal rules, and more expansive disclosure requirements. He has also demanded investigations into conservative justices for their alleged ethical violations. In 2024, for example, Whitehouse and Oregon’s Ron Wyden publicly urged then–Attorney General Merrick Garland to appoint a special counsel to investigate potential tax law violations by Justice Clarence Thomas. Whitehouse also submitted an ethics complaint against Justice Samuel Alito in 2013 over revelations that Alito had accepted luxury vacations from a right-wing billionaire. Nothing came of those efforts. But with few judges to confirm over the next two years, a Whitehouse-led committee would have plenty of free time for investigations of its own.
Third, the state-level losses for Republicans wiped out key portions of conservatives’ legal-political infrastructure. Perhaps the most consequential downballot result of the night in the entire country was Nathan Johnson’s victory in the Texas attorney general’s office. The state attorney general’s office is one of the largest in the country with a staff of 4,000 employees and roughly 750 attorneys. It is a behemoth, on par with the powerful attorney general’s offices in California and New York.
Many of those lawyers work on internal Texas cases with no partisan valence. But Ken Paxton, who lost his state’s Senate race and served in the attorney general’s office for more than a decade, also helped transform the office into a hub for right-wing litigation against Democratic presidents. Paxton filed 107 separate lawsuits against the Biden administration to challenge nearly all of its major policies and regulatory changes. Those cases often went before friendly right-wing federal judges in Texas who regularly enjoined Biden’s major moves, making it effectively impossible for liberals to govern.
If a Democratic candidate wins the 2028 presidential election, they will still have to worry about Republican attorneys general in other states challenging their policies. But the loss of the Texas attorney general’s office—and its highly favorable judicial environment—is a major blow to right-wing litigation campaigns that won’t be easily filled by other states. It also does not bode well for right-wing figures with a penchant for legally dubious behavior—such as Elon Musk, who moved the bulk of his businesses to Texas in the Biden era seeking a more favorable conservative legal landscape.
Fourth, the results are bad news for conservative judges in the lower federal courts who are nearing retirement. Roughly two dozen federal appellate judges appointed by Republican presidents are currently or will soon be eligible for senior status. A federal appellate judge who takes senior status can keep hearing cases, but the change opens up a vacancy for a younger replacement. Trump and the GOP still have a tenuous grip on the Senate for another two months, but at least 20 pending judicial nominees are currently working their way through the confirmation process. Others will have to wait a while—and perhaps a long while.
That brings us to the fifth and final shift after last night’s Senate earthquake: the futures of Justices Clarence Thomas and Samuel Alito. Legal conservatives have looked at the two men with some anticipation and apprehension in recent years, hoping that the two right-wing stalwarts would step aside and allow a younger jurist to take their place. Those hopes were in vain. Thomas, who is 78 years old, is rumored to have his eye set on surpassing William O. Douglas’s record for the longest tenure on the Supreme Court. That would require him to stay on the bench until May 20, 2028.
Alito, who is 76 years old, was seen as more likely to retire first. He raised speculation of an imminent preelection departure with a major book release in October and a valedictory media tour of sorts. Last month, however, Alito publicly ruled out the possibility that he would step down before the end of the court’s current term. Supreme Court justices are typically loath to retire midway through one of the court’s October-to-June terms since it seriously disrupts the court’s work. (The next two oldest justices, Sonia Sotomayor and John Roberts, are 72 and 71, respectively—a spry middle age in Supreme Court terms.)
The scale of the Democratic victories on Tuesday changes the actuarial math for the future of the Supreme Court. If Thomas and Alito had retired earlier this year and been replaced by younger conservative justices in their early-to-mid-fifties, Democrats would not have a natural shot at a Supreme Court majority until the 2060s. Tuesday’s results make it significantly more likely that the court will not get younger or more conservative until 2032 at the earliest. If both men step down for health reasons in the next six years and Democrats win the presidency in 2028, America could see its first liberal Supreme Court majority since the 1960s.
What if one or both of the justices change their minds in the next two months? That ship may have already sailed. The GOP majority in the Senate right now is 53 seats, with Vance available to cast a tie-breaking vote. But it is a brittle majority in functional terms and especially in judicial terms. Alaska’s Lisa Murkowski is not a reliable “yes” vote, having voted against Brett Kavanaugh’s confirmation in 2018. Maine’s Susan Collins voted against Amy Coney Barrett’s nomination in 2020. (She lost her seat on Tuesday in part for voting for Kavanaugh two years earlier.) Kentucky’s retiring Senator Mitch McConnell is in very poor health.
The GOP Senate majority will shrink by one seat a few weeks early when Sherrod Brown replaces John Husted on December 15 under Ohio law. (Everyone else gets sworn in on January 3.) Even if Thomas or Alito were now more inclined to retire in the next two months, in other words, the uncertainty about having enough votes to confirm a successor may be enough to deter them. None of this guarantees a major ideological shift on the Supreme Court in any direction anytime soon. But Tuesday’s Senate victories for Democrats have tilted the playing field in their favor for at least the next four to six years.
Preventing the conservative majority from replenishing itself could end up shaping decades of Supreme Court control to come. 2016 was a very, very bad election for liberals who care about the court to lose, as they have painfully learned in recent years. The 2026 midterms happened to be a very good one for them to win.
