On Friday, the Wall Street Journal editorialized against Emil Bove's nomination. The Journal echoed points by Ed Whelan and others that fewer judges will step down if they think Trump will replace them with judges like Bove--including Justices Thomas and Alito:
The President should understand that his attacks on judicial conservatives will hurt his own agenda and legacy. His social-media post is the talk of the judicial ranks, and he is making no friends. Mr. Trump is likely to see fewer judges retire, lest they be replaced by partisan hacks. That includes Justices Samuel Alito (age 75) and Clarence Thomas (76). Keep exercising daily, good Justices.
Like Whelan, the Journal gets things 100% backwards. In Trump-related cases, Justices Thomas and Alito are dissenting alone. Look at A.A.R.P. v. Trump. Where are the three Trump appointees on that case? Justice Kavanaugh was the closest, but he still concurred. More generally, Justice Gorsuch has voted with Alito and Thomas on most religious liberty issues and separation of powers cases, but who can forget Bostock, McGirt, Brackeen, the tax return cases, and others. And as Adam Feldman's recent analysis shows, Justice Barrett is solidifying herself as the swing Justice. I appreciate this AI graphic from Adam's post. (Update: Jon Adler writes that Roberts, and not Barrett, is the true swing Justices. Well, yeah. But Roberts only makes 4. He needs to recruit Kavanaugh or Barrett to make a majority. And I'll let the Wall of Receipts speak for itself.)
