President-elect Donald Trump hasn’t taken office yet, but speculation about a personnel change at the U.S. Supreme Court is underway. Although no justice has given any indication of retiring, it’s not uncommon for a change on the top court to occur in the early part of a presidency.
In his first term, President Trump nominated Neil Gorsuch and Brett Kavanaugh in 2017 and 2018, respectively. Early in his first term, President Barack Obama nominated Sonia Sotomayor and Elena Kagan to fill vacancies.
The court’s most conservative members, Justices Clarence Thomas and Samuel Alito, will be 77 and 75 years old, respectively, when the current term ends in late June. With the Republicans holding a 53-47 majority in the Senate, talk about a personnel change is likely to increase in the coming months.
To find out who’s on the short list, Legal Dive spoke with attorneys who are keeping their eyes on the court.
The conventional choices
The Fifth Circuit U.S. Court of Appeals — which includes Texas, Louisiana and Mississippi — has long been viewed as the country’s most conservative appellate court. That puts Fifth Circuit Judge James Ho, 51, at the top of many lists.
Born in Taiwan, Ho is viewed as a committed originalist and was a former law clerk for Justice Thomas.
“You can’t discount that [President] Trump could say he appointed the first Asian-American justice,” said attorney Jay Willis, editor-in-chief of the Balls & Strikes website, which covers the Supreme Court. “That would delight him to no end.”
Northwestern University law professor Steven Calabresi, who clerked for Justice Antonin Scalia and worked in the Reagan administration, agreed. “That’s an appointment that is long overdue,” he said. He called Ho “a very strong pick and a really good lawyer.”
Ho is outspoken and has written about issues important to Trump. In a 2024 concurring opinion in US v. Abbott involving attempts by Texas to curb illegal immigration, Ho wrote, “A sovereign isn’t a sovereign if it can’t defend itself against invasion.” He suggested that states have broad authority to declare that an “invasion” exists and take action.
In an interview with law professor Josh Blackman, Ho said, “Too many [academics] believe that any judge who follows the written constitution, rather than a woke constitution, deserves to be trashed.”
Another frequently mentioned choice is Sixth Circuit Judge Amul Thapar, 55, the first Court of Appeals appointment in Trump’s first term. Thapar would be the first Indian-American justice on the Supreme Court and would likely be less polarizing than Ho.
Possibly working against Thapar is his relationship with Senate Majority Leader Mitch McConnell, who has been a long-time champion of his who encouraged Trump to consider Thapar when Justice Anthony Kennedy retired in 2018. Since then, the relationship between McConnell and Trump has frayed. “That could be enough to doom his chances,” said Calabresi.
But Thapar could have an advantage, according to veteran appellate advocate Roy Englert, Jr., who chairs the Supreme Court and appellate litigation practice at Kramer Levin. “J.D. Vance’s wife clerked for Judge Thapar. She was one of the clerks he sent on to the Supreme Court,” said Englert. “I wouldn’t be surprised if the vice president plays a very large role in judicial selection in the second Trump administration. He is a lawyer, and the president-elect is not.”
In addition to Ho and Thapar, some other appellate judges who could be on a potential Supreme Court list — all Trump appointees from his first term — include former Justice Alito clerk and Fifth Circuit Judge Andrew Oldham, 46; Eleventh Circuit Judge Kevin Newsom, 52; Fifth Circuit Judge Kyle Duncan, 52; and D.C. Circuit Judge Neomi Rao, 51.
Unconventional picks
“It would be a big mistake to assume [Trump] will just go with the logical people based on their opinions and being former Supreme Court clerks,” said Washington University law professor Daniel Epps. “Could he go outside the box and do something wacky? That’s totally possible to me.”
A name everyone mentioned is U.S. District Judge Aileen Cannon, 43, of the Southern District of Florida. Judge Cannon, another Trump appointee, became a household name when she was handed the case over the president-elect's handling of classified documents.
“Aileen Cannon is absolutely on the short list,” said Willis. “A district court judge would have seemed far-fetched in recent decades but with Trump you can throw that out the door.”
Englert agrees but he’s wary of Cannon. “She was rated unqualified by the American Bar Association, and her performance has tended to confirm that, because she just doesn’t follow the law,” he said. “If anyone is going to have trouble getting confirmed in a Republican Senate, it would be her.”
Englert’s criticism shouldn’t be seen as political; he praised Newsom and Thapar as “very, very fine judges” who would be good for business interests.
Calabresi had a more positive view of Cannon, saying her opinion in the documents case “took a lot of courage to issue” and noting that she has a compelling life story with her mother being a refugee from Communist Cuba. But, Calabresi acknowledged, “She would trigger intense resistance from people who think she delayed the Trump trial unfairly.”
Two other attorneys who might be considered include Trump’s Solicitor General nominee D. John Sauer and Deputy Attorney General nominee Todd Blanche. Sauer represented Trump before the Supreme Court in the presidential immunity case, Trump v. US. Blanche defended Trump in his New York criminal trial last year.
Trump could also look to the Senate for the next Supreme Court opening. For a president who values loyalty, Missouri Sen. Josh Hawley is “definitely in the mix,” said Englert
Hawley was the first senator to announce publicly that he would back the effort to challenge the certification of President Biden’s win in the 2020 election. “Hawley’s gesture to the crowd on January 6, is something Trump loves,” said Englert. “Also, he’s only 44, and has clerked on the Supreme Court [for Chief Justice Roberts].”
Other senators who could be considered are Utah Sen. Mike Lee and Texas Sen. Ted Cruz. “I think Mike Lee is a very serious thinker and has toed the line for Trump’s agenda,” said Englert.
Court balance
If Justice Alito or Thomas were to step down it would not change the court’s 6-3 balance between Republican- and Democratic-appointed justices. But the attorneys agreed the ramifications on the court will be significant.
“The impact is still big because you’ll have a five justice conservative majority with all of them younger than 60,” said Epps. Only Chief Justice Roberts, at 69, is older. “It would take something unforeseen to get the court back in the Democrats’ hands.”
Epps and Willis said Republican appointees to the bench are more conservative than their predecessors. “There is a difference in kind between the Thomas and Alito generation and the generation of Trump appointees steeped in MAGA politics,” said Willis. “Some of these judges are more interested in the culture wars.”
What won’t change is the pro-business jurisprudence the court has had for years. “The pro-employer, anti-labor trend will continue no matter what,” Willis said.
Englert called Newsom “the best choice for business,” and says he’s one of the finest legal writers he has seen, along with Justice Elena Kagan.
Mainstream conservatives are unlikely to have Trump’s ear as much as they did in his last term. That increases the chance of his naming someone who’s not on anyone’s short list. “I wouldn’t be surprised if it’s a name no one has mentioned,” Englert said.
Calabresi, a leading conservative thinker, did not disagree. “Sometimes I think what Trump wants most is to stick his thumb in the eyes of his opponents,” he said.
