Leonard Leo, Trump aide Mike Davis spar over Supreme Court retirements
Conservative activist Leonard Leo attends the Federalist Society’s Antonin Scalia Memorial Dinner in D.C. in November 2023. (Jahi Chikwendiu/The Washington Post)
An influential conservative lawyer who advised Donald Trump during his first term forcefully pushed back on talk that one or more conservative Supreme Court justices might retire after Trump again takes office in January.
Leonard Leo, who helped the president-elect select three Supreme Court picks during his first term, said in a statement Friday that discussions of Justices Clarence Thomas, 76, or Samuel A. Alito Jr., 74, stepping down are unseemly.
The comment drew a rebuke from Mike Davis, a Trump aide who is advising him on potential judicial picks this time around, while Leo appears to be keeping his distance.
“No one other than Justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed, and, frankly, just crass,” Leo said in the statement. “Justices Thomas and Alito have given their lives to our country and our Constitution, and should be treated with more dignity and respect than they are getting from some pundits.”
Talk of Thomas or Alito retiring has grown since Trump’s victory and Republicans’ winning a majority of seats in the Senate on Tuesday, because Trump could replace one or both of the court’s aging conservatives with younger justices while preserving the court’s 6-3 rightward tilt. Such a move could cement conservative domination of the court for decades to come.
Davis predicted on X earlier this week that Alito might be “gleefully packing up his chambers.” But neither Thomas nor Alito has indicated plans to step down, and some conservatives have said they believe each justice would like to stay on the high court for the foreseeable future.
The pair are consistently the most conservative voices among the nine justices. Thomas has served since 1991, Alito since 2006. Both have been dogged by ethics controversies.
Told of Leo’s statement about the two justices, Davis indirectly accused him of not acting to protect members of the high court in recent years, referencing a $1.6 billion donation that was given to a nonprofit organization controlled by Leo in 2021.
“It’s amusing to watch D.C. conservatives pretend to care about Supreme Court justices now, after they sat on the sidelines with all the money during the years of vicious attacks against conservative justices,” Davis said.
Leo, who has frequently defended Thomas and Alito, did not directly respond to Davis’s criticism. The back-and-forth appears to highlight breaks between current and former legal advisers around Trump.
Leo has not returned to help Trump on judicial picks as he did during the first term, according to a person who spoke to The Washington Post on the condition of anonymity to discuss a sensitive matter. The Post reported in February that Trump and Leo had a falling out in 2020.
Trump has turned to attorneys including Davis and Mark Paoletta, who served in Trump’s first administration and is being considered for attorney general when Trump takes office, for guidance on legal and judicial policy.
Leo, who is a co-chair of the Federalist Society, said in an interview that he thinks right-leaning Republican lawyers share common goals.
“I think all the members of the conservative legal movement attend the same church but sit in different pews sometimes,” Leo said. “They all have an abiding commitment to the Constitution.”
Discussions about Supreme Court retirements are common after all presidential elections, since the new administration can put its stamp on the court by filling any vacancies. But Ed Whelan, a conservative attorney and vice president of the Ethics and Public Policy Center, agreed with Leo that some of the recent speculation has crossed a line.
“It’s one thing to guess what a justice will decide to do,” Whelan, a former Supreme Court clerk, said in an email. “It’s quite another to try to tell a justice what to do.”
