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By Andrew Stanton
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President Donald Trump’s window to appoint another Supreme Court nominee may have closed, as Democrats have secured a Senate majority that could block any appointee he makes in the second half of his term, legal analysts told Newsweek.
Democrats are picking up at least seven Senate seats in Iowa, Kansas, Maine, North Carolina, Ohio, South Carolina and Texas after the midterms, with races in Alaska and Mississippi remaining too close to call.
One of the most significant impacts of a Democratic Senate is the ability to deny Trump a Supreme Court nominee if one of the nine seats becomes open in the next two years. Any Trump-appointed justice would need Senate confirmation, and Democrats could block any justice he appoints.
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While justices were historically confirmed on bipartisan lines, the process has become much more partisan in recent years.
The 2016 battle to confirm Merrick Garland, who former President Barack Obama appointed after the death of Justice Anton Scalia, reshaped Supreme Court confirmation battles. Republicans refused to confirm a new justice in a presidential year, hoping that Republicans would flip the presidency. They got their wish, and Trump was able to appoint Justice Neil Gorsuch upon taking office in 2017.
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In 2020, Republicans confirmed Justice Amy Coney Barrett, after the death of Justice Ruth Bader Ginsburg, despite Democrats arguing the 2016 precedent means Republicans should not have confirmed her in an election year. Trump also appointed Justice Brett Kavanaugh to the bench during his first term.
During Trump’s second term, the president has not been able to appoint any more justices. Some Republicans have hoped some of the older conservatives on the bench, such as Justice Samuel Alito or Clarence Thomas, could retire before the midterms to give Trump a chance to appoint a younger justice, who would easily be cleared by the GOP-controlled Senate and could serve for decades.
But neither justice has retired or indicated they plan to do so.
Now, with the prospects of a Democratic-held Senate come 2027, Trump’s chances of appointing another conservative justice appear to be slipping.
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Democrats Could Block Trump Nominees
Democrats will have at least 54 Senate seats in January, giving them the ability to block Trump nominees.
Daniel Urman, a law professor at Northeastern University, told Newsweek he believes it’s likely that Democrats would block a Trump appointee.
“If he were to retire at the end of the OT 2026 term in June 2027, Democrats would probably refuse to hold a hearing for President Trump’s nominee, leaving the seat open until 2028,” he said. “This means that the Court could be equally divided on some cases (4-4), leaving the lower court ruling in place.”
This means the Court could work harder to “find common ground and compromise,” as it did after Scalia’s death.
Urman said there is a “slim chance” that Trump could try to negotiate with Senate Democrats to nominate a more moderate pick if a vacancy opens up.
“Given his track record and frustration with the Justices he has already put on the Court, it’s very unlikely that he would do so. He wants Justices who are loyal to him, and never vote against his preferred laws and policies,” he said.
Some Republicans are already lamenting their prospects on the Supreme Court.
“This is really going to have an impact two years, four years, six years, maybe even longer before Republicans could exercise unified control in Washington again, like we've enjoyed over the last two years. Just think what this means, having 56 senators. That means no Supreme Court justice will be confirmed under President Trump's administration unless something happens in the next six weeks,” Florida Governor Ron DeSantis said during a press conference on Wednesday.
Could Alito Retire in Lame Duck Session?
Republicans do have time to confirm a justice should any retire before the end of the year, Paul Collins, professor of legal studies and political science, told Newsweek, but he noted that the “clock is ticking.”
“While a lame duck retirement is technically possible, a Supreme Court justice stepping down for such explicitly political reasons would be unprecedented,” he said. “That said, if any justices were to retire under these conditions, Samuel Alito or Clarence Thomas would be the most likely candidates.”
He pointed to their “deep ties to the conservative legal movement,” and noted that both likely understand the “ideological shift” that would occur if a Democratic president got to appoint their successors.
Dave Aronberg, former Palm Beach County state attorney, told Newsweek that Republicans are likely to “try to lean on Justice Alito during the lame-duck session before the new Congress is seated.” But he said a “rushed, politically staged retirement” is unlikely.
“Once Democrats officially take the Senate gavel, Trump’s chances of pushing through another conservative justice are practically zero,” he said. “Democrats have had a decade to stew over Mitch McConnell blockading Merrick Garland in 2016. If a vacancy opens up under a Democratic-led Senate, they won't hesitate to give Republicans a taste of their own medicine.”
Alito addressed speculation that he could retire in a recent Fox News interview.
“I’ve been bemused by the retirement speculation. It’s not too pleasant to look up and see the vultures circling, you know, circling around your head,” he said. “But the speculation is to be expected. It’s what goes with life tenure.”
He said he does not have a “calculation” as to when he could retire.
Senate Majority Leader John Thune, a South Dakota Republican, told Punchbowl News in July that Republicans could confirm a justice in the lame-duck session, saying, “It can be done.”
However, Republicans’ majority is expected to shrink before January. Democratic Senator-elect Sherrod Brown could be sworn in as early as December 15, as his victory was in the special election for the seat held by Vice President JD Vance, rather than a normal election for a six-year term.
But such a move could also be risky for Republicans, Collins said.
“If Alito retired before the new Senate is sworn in on January 3, that would give Democrats plenty of motivation to pass significant Supreme Court reform, including Court expansion and term limits,” he said.
It would “reek of pure partisan politics,” according to Urman.
“The Justices like to suggest that their role is different than the elected/political branches, and they are guided by law, not politics. If he retired to ensure that President Trump rushed through a conservative successor, it could weaken the Court’s already low standing in the eyes of the public,” Urman said.
Stephen Wermiel, professor of practice in constitutional law at American University, told Newsweek such a move would spark an outcry from Democrats and that it’s no guarantee that moderate Republican senators who are at odds with Trump or not returning to the Senate next year would be interested in confirming a justice.
“Trump would need the support of Republican senators who are lame ducks, themselves, because of his opposition, and he might not get it: John Cornyn, Bill Cassidy, Tom Tillis; and then he might not get [Maine Senator Susan] Collins, [Alaska Senator Lisa] Murkowski,” he said.
Thomas Confronts Legacy as Trump Appointment Chances Slip
Thomas is another older conservative justice, but he may be weighing other parts of his legacy. He is already the second-longest serving justice in history and is less than two years away from becoming the longest-serving justice, a feat he would achieve in May 2028.
Collins said Thomas may be thinking about his legacy in terms of the ideological balance of the court.
“I do think Thomas is thinking about his legacy in terms of being the longest-serving justice in the nation’s history. But, I also believe he thinks about his legacy in terms of the ideological shift that would occur if a Democratic president named his successor. So, I think he’s probably considering retirement, even if it is improbable he will ultimately opt to retire,” he said.
Wermiel said he doubts Thomas is likely to retire in the coming years.
“I highly doubt that Clarence Thomas will walk away before setting the longevity record for Supreme Court tenure in June 2028, especially knowing that if Trump tried to appoint his successor, the nomination would almost certainly not advance,” he said.
How Else Will Democratic Senate Impact Supreme Court?
Collins said Senate Democrats could weigh Supreme Court reform, though it would likely be vetoed by Trump. Many Democrats have floated proposals like term limits or ethics codes for justices as an effort to improve falling trust in the High Court.
“Public support for the Court is hovering at historic lows so there is an appetite for change among the American public, which we observed on Tuesday,” he said.
Wermiel said he believes reform efforts may be difficult to pass if Republicans are not on board, because Trump still wields the power of the veto.
“As for other impacts, the Democrats do not have veto-proof majorities, but they may still try to pass Supreme Court reforms like term limits or a tougher ethics code for the justices,” he said.
Polling has found that trust in the Supreme Court remains near its record low. Only 34 percent of Americans approved of the Court in the September 2026 Gallup poll. That’s the lowest point ever at the start of the term, and is only a single point higher than the record low recorded in July, after the most recent term when approval stood at 33 percent.
Contact Newsweek editors on this story: Jason Lemon and Gray R. Thomas
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