Washington is a city that measures mortality in majorities. This month it has been given ample material for the exercise. Lindsey Graham, dead at 71 of a torn artery after a red-eye from Kyiv. Mitch McConnell, 84, spending weeks in a hospital bed after a fall in his Washington home, while his office answered questions about his condition with studied vagueness.
Between these two events, Nina Totenberg – at NPR since Nixon was fending off subpoenas – misheard a word from the bench and reported Samuel Alito’s retirement to a nation that, for five minutes, believed her. The retraction came quickly. The anxiety it revealed has not.
Totenberg’s error was, as errors go, a small and human one. But its interest lies less in what she got wrong than in why so many people readily believed it. Hunger existed for the story to be true, on both sides of the aisle, because politicos have been doing the same quiet arithmetic.
Clarence Thomas is 78; Samuel Alito is 76. The current life expectancy for an American man is roughly 76 years. Both justices have therefore already outlived the actuarial tables, a fact conservatives ought to regard less as morbid trivia than as a memo from Providence, suggesting that the questions “who” and “when” deserve rather more attention than leisurely constitutional habits generally permit.
The Court’s history is a long lesson in the difference between hanging on and holding on. William O. Douglas remained through a debilitating stroke until the other justices, in effect, retired him in 1975. Thurgood Marshall and William Brennan left within a year of each other in 1990 and 1991, handing their seats to a Republican president and, with them, David Souter and Thomas, proof the miscalculation is not a partisan but an institutional affliction.
Ruth Bader Ginsburg belongs to the same lineage. Confident of a Democratic succession that never arrived, she died in September 2020. Amy Coney Barrett’s subsequent confirmation did more to reorder American jurisprudence than a decade of appellate opinions. Barrett has lately drawn fire from quarters that once cheered her nomination, but the structural reality remains: her presence on the Court, rather than a Ginsburg replacement selected by a different president, has bent the arc of the law rightward for a generation.
The difficulty for conservatives contemplating Thomas’ and Alito’s eventual departures is that both men have been, for the better part of two decades, minor miracles of reliability, a species increasingly rare on a Court whose members drift, disappoint, or discover unsuspected nuance once robed. Replacing either with something as dependable is no small task. The thought of a Democratic president choosing their successor is enough to induce something like vertigo in Federalist Society circles.
That prospect, alarming in any year, is more alarming now, because the Senate majority that would have to confirm – or decline to confirm – such a nominee is thinner than it looks, and possibly getting thinner.
Republicans hold the chamber 53–47, a margin generous on paper and precarious in practice. Graham’s death did not, strictly, shrink it; South Carolina’s governor moved swiftly to appoint Graham’s sister to finish the term, preserving the seat’s letter, if not entirely its heft.
McConnell’s absence is a different matter. A caucus that cannot always assemble its full complement on a given Tuesday is not one that inspires confidence about a contested confirmation fight 18 months from a presidential election it does not control.
And that caucus faces a midterm map that is, depending on which oracle one consults, either comfortably Republican or alarmingly not. Democrats need a net gain of four seats; Republicans can survive losing two.
The seats in play read like a tour of the nation’s political moods: North Carolina, where Thom Tillis’ retirement has handed Democrats a favored opening; Maine, where Susan Collins faces her most genuine test in a generation; Georgia, where Jon Ossoff defends a seat won by inches; Michigan and Ohio, where retirements have opened Republican opportunities that the party may or may not convert; and Iowa, Texas, New Hampshire, Alaska and Nebraska, where independents and unexpected primary results have made maps that once looked safely red look merely reddish.
Any of these could tip a chamber already operating, some weeks, a man short.
None of this constitutes a wish, on my part or anyone’s, for either justice’s departure, still less for McConnell’s decline or in memoriam of Graham, whose sudden death has left a Senate conference smaller than it was a fortnight ago.
Nor is this a summons. Thomas and Alito hold their seats by life tenure and their own judgment, not mine, and nothing here should be mistaken for a polite request that they hurry.
But wishing men well is not the same as pretending the calendar has been suspended on their behalf. It’s entirely reasonable, and indeed rather American, to look at two justices past the actuarial horizon, a Senate majority contingent on health and turnout in equal measure, and a midterm map full of tossups, and feel the particular, low-grade nervousness that comes from understanding how much of constitutional order rests, in the end, on frail and mortal custodians.
The framers built checks and balances to survive the ambitions of factions. They did not, and perhaps could not, build them to survive the human body’s very good and natural reasons for eventually calling it a day.
Allen Mendenhall is a Senior Advisor for the Free Enterprise Initiative and a Research Fellow in the Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation. A lawyer with a Ph.D. in English from Auburn University, he has taught at multiple colleges and universities across Alabama and is the author or editor of nine books. Learn more at AllenMendenhall.com.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
Don't miss out! Subscribe to our newsletter and get our top stories every weekday morning.
