by Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law
The thought of Donald Trump getting to pick one more Supreme Court justice is truly chilling. Neil Gorsuch replacing Antonin Scalia was an enormous lost opportunity, but it kept the Court’s ideological balance the same as it had been with Scalia on the Court. Trump replacing Ruth Bader Ginsburg or Anthony Kennedy or Stephen Breyer would create the most conservative Court since the mid-1930s and a conservative majority that could remain on the Court for years to come.
Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. Today, there are three justices older than that. Justice Ginsburg turned 85 on March 15. Justice Kennedy will turn 82 on July 23 and Justice Breyer will have his 80th birthday on August 15. I have no doubt that Justices Ginsburg and Breyer will remain on the Court until the end of the Trump presidency if their health allows them to do so. But there are rumors that Justice Kennedy might retire at the end of this term.