No Supreme Court justice has announced plans to retire. No vacancy exists. And yet the liberal advocacy group Demand Justice is preparing to spend up to $18 million fighting nominees who have not been named for seats that have not been vacated. The organization's bet is that President Trump could get the opportunity to appoint two more justices to the nation's highest court before his term ends, potentially locking in a dominant conservative supermajority for decades. The strategy is unprecedented: a preemptive war over phantom Supreme Court seats, launched seven months before midterm elections that could determine whether any future Trump nominee has a path to confirmation.
The Math
The two justices at the center of the speculation are Clarence Thomas, who is 77, and Samuel Alito, who is 76. Both were appointed by Republican presidents. Both have served for decades. And both face a ticking political clock.
Republicans currently hold the Senate with a slim majority. If either Thomas or Alito wants to ensure a conservative successor, the safest window is before the November midterm elections. Democrats need to flip at least four Republican held seats to take control of the chamber. If they succeed, any Trump nominee would face steep confirmation odds for the remainder of his term. If a Democrat then wins the White House in 2028, both Thomas and Alito would be in their 80s before another Republican president could name their replacements.
Josh Orton, the president of Demand Justice, told The New York Times that the initial phase of the campaign would cost $3 million. If vacancies materialize and Trump puts forward nominees, the spending would expand to $15 million more, for a total commitment of up to $18 million.
The plan is designed to tie Republican senators running for reelection this November to any confirmation fight, forcing them to defend their votes in competitive races where the court's legitimacy has become a potent issue for Democratic voters.
The Alito Signal
Retirement speculation has centered more heavily on Alito than Thomas, driven in part by an unusual publishing announcement. Legal observers noted that Alito has a book scheduled for release on October 6, 2026, just weeks before the midterm elections. Elie Mystal of The Nation and Dahlia Lithwick of Slate both flagged the timing as a potential signal, as a sitting justice would be unlikely to embark on a book tour while still on the bench.
Melissa Murray, a law professor at New York University and cohost of the legal podcast Strict Scrutiny, observed that Alito is approaching 20 years on the court. "That is usually a very good milestone on which to retire," Murray said, according to USA Today. She added that if Alito wants to step down while Republicans control the Senate, he may not want to gamble on the midterm outcome.
Alito's frustrations with the court's direction have also become more visible. After the court's ruling earlier this year striking down key elements of Trump's tariff legal rationale, the president publicly praised the dissenters by name, including Thomas, Alito, and Brett Kavanaugh. The decision underscored a fault line between the court's institutionalists and its most ideological conservatives.
Conservative legal analyst Ed Whelan predicted in late 2024 that Thomas would retire in the spring of 2026, writing on social media that the timing would allow a Republican Senate to confirm a successor before the midterms introduced uncertainty.
The 2018 Playbook
Both parties have reason to view a Supreme Court vacancy as an electoral accelerant. In 2018, the confirmation battle over Brett Kavanaugh, which featured allegations of sexual assault and a dramatic Senate hearing, galvanized Republican voters in Senate races even as the party lost 40 net House seats. Senators Mitch McConnell and Lindsey Graham credited what they called the "Kavanaugh effect" for Republican victories in key Senate contests against red state Democrats.
New York Magazine's Ed Kilgore noted that a 2026 confirmation fight could produce a similar effect, but the dynamics have shifted. In 2018, Republicans were defending the nomination. In 2026, it would be Democrats on offense, potentially using a confirmation battle to energize voters concerned about the court's role in decisions on abortion, regulatory power, and executive authority. The calculus depends on which party's base cares more about the court heading into November.
For Democrats, the stakes are existential. Trump has already appointed three justices during his two terms: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Adding two more would mean that five of the court's nine members were appointed by a single president, a concentration of judicial power without precedent in the modern era. The youngest of Trump's current appointees, Barrett, was 48 when confirmed. If his next picks are similarly young, the ideological composition of the court could be fixed well into the 2060s.
The Democratic Path
The Demand Justice strategy depends on a theory that the Supreme Court has become a motivating issue for Democratic voters in a way it was not a decade ago. The Dobbs decision overturning Roe v. Wade, the court's intervention in regulatory and executive power cases, and the ethics controversies surrounding both Thomas and Alito have shifted public attention to the institution in ways that favor progressive mobilization.
But the strategy also carries risks. A preemptive campaign against nominees who do not yet exist could be dismissed as alarmist, particularly during a period when the Iran war and economic instability dominate public attention. Senate Democrats would need to maintain discipline across a caucus that includes both institutionalists wary of court packing rhetoric and progressives who want aggressive confrontation.
If Republicans retain the Senate in November, any vacancy this summer could be filled quickly and without drama. The real battleground would then shift to the 2028 presidential race, with Democratic candidates running on the court's composition as a central issue.
The Institutional Question
At its core, the Demand Justice campaign is a bet on the Supreme Court's declining public legitimacy. Gallup polling has shown that public confidence in the institution has reached historic lows in recent years. The ethics controversies involving Thomas's undisclosed gifts from conservative donor Harlan Crow and Alito's display of political flags have eroded the court's image as an apolitical institution, particularly among independents and younger voters.
The question is whether that erosion translates into votes. Supreme Court composition has historically been a more potent motivator for Republican voters than Democratic ones. The Federalist Society spent decades building an infrastructure to identify, vet, and promote conservative judicial nominees. Democrats are trying to build something equivalent in a matter of months, and they are starting from behind.
No vacancy has been announced. No nominee has been named. But the fight over the next Supreme Court seat may have already begun.