Should Alito and Thomas Resign? Midterm Results Put Future Supreme Court Second Amendment Rulings at Risk
“Justice Samuel A. Alito Jr. has told people close to him that he does not intend to retire immediately from the Supreme Court, despite Democrats’ commanding win in Senate contests on Tuesday, which means Republicans will hold the chamber for only a short time longer,” The New York Times reports. “As a result, Republicans may have missed the window for President Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency.”
Also not ready to retire, per the report, is Clarence Thomas.
That puts a quick end to a speculative recommendation made Wednesday by attorney and Four Boxes Diner host Mark Smith, who made a compelling case that, due to their ages, Alito, 76, and Thomas, 78, “should consider making this personal sacrifice for the good of the country” and resign immediately contingent on suitable replacements being confirmed.
Smith’s reasoning is that once Democrats take control of the Senate on January 3, 2027, there is no way another Trump nominee would be confirmed if a court vacancy arose, and if Democrats go on to hold the legislature and win the White House in 2028, future vacancies will be filled by confirmed anti-gunners.
Were that the case, look for Second Amendment “wins” to be reversed and new bans upheld as Constitutional.
If Alito and Thomas would agree to fall on their swords for the good of the Republic, the confirmation process would need to be accelerated—something Smith acknowledges has been done before, noting Amy Coney Barrett’s 2020 nomination and confirmation happened in less than a month.
If such a scenario were to play out, the question of “Who?’ would become paramount. Arguably foremost among potential candidates would be Lawrence Van Dyke of the Ninth Circuit Court of Appeals, whom Bloomberg Law acknowledges as “the court’s most vocal defender of gun rights,” and who called for the Supreme Court to administer some “benchslaps” against the inferior court’s “wayward Second Amendment decisions.” There’s also U.S. Appeals Court Judge Thomas M. Hardiman, whom The Washington Post tells its readers is “seen as ‘Second Amendment extremist,” and Judge Raymond Kethledge, whom National Review credits as a justice who “vigorously defends — and exercises — individual rights under the Second Amendment.”
What would complicate such a scenario are potential Republican turncoats.
Sen. Lisa Murkowski (once more!) betraying the Republican party by endorsing a Democrat in Alaska’s gubernatorial race comes to mind. And per The New York Times report:
“A nominee would have faced the newfound independence of departing Republican senators such as John Cornyn of Texas and Bill Cassidy of Louisiana, who were defeated in primaries by Trump-backed challengers, in addition to Susan Collins of Maine, a moderate who lost on Tuesday. The group may have had little appetite to help Mr. Trump ram through a nominee of his choice.”
The bottom line: Thomas and Alito have been blessings for gun owners but Smith is right. Once vengeance-minded Democrats assume power, expect any move by an increasingly harassed President Trump to be blocked, and don’t be surprised to see serious moves to “expand” and “pack” the High Court.
As always, our freedom is not ultimately in the hands of any politician or of any judge. The saving grace in all this is that the Second Amendment is still working. As long as we refuse to give up our guns “they” don’t have the power to take them.
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
