SCOTT SIMON, HOST:
It's been quite a week, with a major shake-up for Congress and for the president. But what about the unelected branch of government - the Supreme Court and the lower courts? We're joined now by NPR legal affairs correspondent Nina Totenberg. Nina, thanks so much for being with us.
NINA TOTENBERG, BYLINE: Pleasure to be here, as always.
SIMON: Let's begin with rumors this week that Justice Alito might retire so President Trump could appoint a successor while Republicans hold control of the Senate. And that would ensure conservatives their 6-to-3 majority for the foreseeable future, right?
TOTENBERG: Well, not only has Alito said in a couple of recent interviews that he does not plan to retire, but the politics really would be nigh unto impossible.
SIMON: But after all, Republicans would still control the Senate until the start of the new Congress in January, wouldn't they?
TOTENBERG: Look. Senate Republicans just took a terrible drubbing, in part because they were little more than rubber stamps for Trump. So I doubt they want to spectacularly do more of the same. Not to mention that there simply is not time to confirm a nominee. There are roughly 20 scheduled legislative days left on the calendar before January. And in that time, this Congress has to reach another deal over the budget, or there could well be another - wait for it, Scott -government shutdown.
SIMON: Republicans got rid of the filibuster nine years ago for Supreme Court nominees. So couldn't a nomination be pushed through?
TOTENBERG: Not really. Even without a filibuster, opponents can eat up a huge amount of time on the Senate floor. In fact, as I understand it, Republicans are hoping to at least get a bunch of lower-court judges confirmed before the switchover in power, and even that could be hard.
SIMON: Well, then, looking at the big picture, what does the election mean for judicial appointments once the Democrats take over the Senate?
TOTENBERG: With Democrats holding at least 54 votes, starting January 3, they will run judicial appointments likely until 2030. And among other things, they'll have to decide whether to slow-walk Trump's judicial nominees or maybe even block most of them - which Republicans did in the Obama and Biden administrations - or try to make deals on nominations with the president. I can tell you one thing for sure, though. If any of the Trump nominees wants to get confirmed, they will have to answer the question they have consistently refused to answer at their confirmation hearings - who won the 2020 election?
SIMON: What effects, if any, will the shift in power have on the Supreme Court?
TOTENBERG: Well, just to cite one example, the court's emergency docket, which has ballooned under Trump to staggering proportions - Congress could put some limits on that. It could require disclosure of who votes how. It could put in place an ethics-enforcement regime for the court. Or it could include the Supreme Court in any legislation that bars stock ownership, but likely only if Congress puts the same rules in place for itself.
Looking ahead to the presidential election in 2028, regardless of who wins, the likelihood is that Democrats will still control the Senate. And that makes it much easier for Justice Sotomayor, who will be 74 then, to retire if she wants to, or, for that matter, Justice Kagan, who will be 68. And at the same time, Justice Alito will be 78 by then and Justice Thomas 80, making the actuarial tables much more friendly for Democrats.
SIMON: Nina, what were the down-ballot effects of the election on the Supreme Court?
TOTENBERG: This is really interesting. And I've got to give credit to Georgetown Law professor Stephen Vladeck for this observation, which involves the role played in Supreme Court litigation by state attorneys general. The Democrats have apparently picked up five attorney general seats, among them in Texas, where for almost 12 years, Republican Ken Paxton has led the charge for the hard right in the Supreme Court and aligned himself so closely with Trump that the Texas AG's office is often referred to as MAGA's private law firm.
Now, though, the Texas AG's office will be run by a Democrat, and that has some consequences that most people would never think of. Many of the cases that Paxton's office brought will be dropped. Think, for example, the challenge to DACA or sales of mifepristone. And as Professor Vladeck observes, while other states will try to pick up the conservative slack, there are procedural reasons that Texas was particularly well-situated to lead this sort of litigation.
SIMON: And I would assume that having Democrats in Congress holding hearings and issuing subpoenas - that sort of thing - will also make things harder for the Trump administration.
TOTENBERG: Exactly, though let me remind you that issuing subpoenas is way easier than winning compliance in a long legal battle that ends up in front of a potentially hostile Supreme Court.
SIMON: NPR's Nina Totenberg, thanks so much for speaking with us this week.
TOTENBERG: Always a pleasure. Transcript provided by NPR, Copyright NPR.
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