WASHINGTON – Congress is the battleground in the 2026 midterm elections but the Supreme Court could feel the fallout.
The results of the Nov. 3 contests will shape disputes about the high court's membership,its size and its ethics. And lawmakers and candidates from both parties are jockeying to influence the high court’s decisions, even if President Donald Trump and the justices aren’t on the ballot.
Trump, who has appointed three of the nine justices, has said he could appoint more in the final two years of his term. But Democrats have talked about blocking any nominees to prevent him from bolstering the 6-3 conservative majority if they regain control of the Senate.
Leaders in both parties are pointing to those stakes as the midterms approach.
Republicans have promoted rulings overturning the right to abortion and expanding court review of government regulations as reasons they want to keep appointing and confirming justices. They also note they've benefitted from decisions this year dealing with congressional map-drawing and campaign spending.
“I think it’s important to remind some of these Republicans who are not energized yet that the Supreme Court’s on the ballot,” Sen. Steve Daines of Montana, who leads the GOP campaign committee for Senate candidates, told Fox News on Oct. 6.
Democrats, meanwhile, are blasting the court’s current path and vowing to prevent additional Trump nominees from being seated. Democrats have also proposed expanding the size of the court and forcing ethics requirements on the justices, although both proposals have stalled for years.
"Look, the bottom line is, one of the reasons that we want to do everything we can to take back the Senate is to not let Trump put such horrible justices, MAGA justices, on the Supreme Court and the lower courts," Senate Minority Leader Chuck Schumer, D-New York, told reporters Sept. 30.
Will Trump get to appoint more justices?
Trump had three nominees confirmed to the bench in his first term: Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
They helped guide landmark decisions overturning the right to abortion, giving the president more power to fire staffers in the executive branch and curbing the Voting Rights Act in a way that allowed Republicans to redraw congressional maps to their advantage.
Whether Trump will have the opportunity to nominate a fourth to a lifetime appointment is top of mind for lawmakers in both parties.
Justices Clarence Thomas, 78, and Samuel Alito, 76, who were each nominated by Republicans, are often the subject of retirement speculation. Thomas is nearing the record for longest-serving justice, in May 2028. Alito told USA TODAY he was “amused and puzzled” by an erroneous report in June about him retiring but said he is not leaving yet.
Justice Sonia Sotomayor, 72, a Democratic appointee, has diabetes and was the subject of retirement speculation at the end of former President Joe Biden’s term. But she hasn’t given any signal that she will step down.
Trump praised Alito as a "brilliant justice" who is "in very good physical health" during an April interview with Fox Business News. But the president also said he could fill more than one vacancy, if necessary.
"In theory, it's two or three, they tell me, if you just read the statistics," Trump said. "It could be two, could be three, could be one. I don't know. I'm prepared to do it."
At a rally Oct. 27 in Lubbock, Texas, Trump said that he would appoint Sen. Ted Cruz, R-Texas, to the Supreme Court if there is another vacancy during the final two years of his term.
Part of Trump’s pitch in campaign stops to spur turnout in the midterms was to oppose Democrats who could stall the confirmation of his judicial nominees and thwart his legislative agenda.
"I would pick Ted Cruz to be the next Supreme Court justice, and I wouldn't have to worry about it,” Trump said.
Democrats brace for potential fight over Trump nominees
A battle over a Supreme Court vacancy a decade ago illustrates why the stakes are high in this election.
After Justice Antonin Scalia died in February 2016, Republicans in control of the Senate refused to consider President Barack Obama’s nomination of then-Judge Merrick Garland to fill the seat until after the November election. Trump won and was able to nominate Gorsuch to fill the seat.
Democrats have threatened to use the same strategy if there is another vacancy under Trump and they control the Senate.
Sen. Richard Blumenthal, D-Connecticut, told NBC News this month he doesn’t think Democrats would confirm a Trump pick.
“Well, given the history of Trump nominees, I think it is slim to none that we would support a nominee from this administration,” Blumenthal said. “Because we’ve seen this movie, we know how it ends, which is a politician in robes who is following Trump’s orders on most major questions.”
Votes on Supreme Court nominations are at the center of one of the highest-profile Senate races in the country.
Democrat Troy Jackson, a former state Senate president in Maine, who is running to unseat GOP Sen. Susan Collins, said on social media “she can’t be trusted” to determine who sits on the Supreme Court because she voted to confirm Alito, Gorsuch and Kavanaugh. The three justices, in turn, voted to overturn Roe v. Wade in 2022.
Collins called the decision “ill-considered” and "a sudden and radical jolt to the country that will lead to political chaos, anger, and a further loss of confidence in our government."
“This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon,” Collins said in a statement at the time.
Democrats propose adding justices to dilute conservative bloc
Another dispute is over the size of the court.
Democrats in the House and Senate have proposed for years to expand the court to 13 justices, from the nine set in statute in 1869, to dilute conservative power on the bench. But Biden didn't embrace the proposal and Republicans denounced it.
Sen. Ed Markey, D-Massachusetts, has argued for years that Republicans "stole" two seats on the court in 2016 and 2020. He also said Republicans politicized the court, but that expanding the membership to 13 would restore balance.
"Our democracy is in jeopardy today because the Supreme Court's standing is sorely damaged. And the way we repair it is straightforward," Markey said at a 2021 news conference promoting the legislation in front of the court.
House Republicans, meanwhile, voted in September on a constitutional amendment to limit the number of justices to nine. House Speaker Mike Johnson, R-Louisiana, said in a statement that "defending the integrity of the Supreme Court shouldn’t be a controversial vote.”
But the GOP measure failed on a 212-206 vote in September for lack of the required two-thirds majority for an amendment.
“It is another partisan power grab by MAGA, our colleagues who fear for the results of the November election, as their policies have brought us nothing but war, inflation, corruption, lawlessness, and a $40 trillion debt, one-quarter of it supplied by this presidential administration,” Rep. Jamie Raskin, D-Maryland, said on the House floor.
Democrats propose term limits for justices
Four Democratic senators in July proposed another way to get new justices on the high court – by setting term limits of 18 years. The goal would be to have a new justice seated every two years.
“Term limits and regular appointments would make the Court more representative of everyday Americans and help restore the Supreme Court to the proper independent body it was created to be,” Sen. Sheldon Whitehouse, D-Rhode Island, said in a statement.
Abdul El-Sayed, a Democrat campaigning for Senate in Michigan against Republican former Rep. Mike Rogers, said he supports ending lifetime appointments and allowing the same number of appointments for each presidential term.
“I understand that the Supreme Court itself has become a major impediment to democracy,” he said in a statement, citing decisions on voting rights, civil rights and reproductive rights.
But similar proposals have languished for years without action. Some legal scholars contend that it would take a constitutional amendment to halt lifetime tenure for justices, and that a faster turnover could cause “whiplash” from changing personnel more frequently.
Ethics proposals for Supreme Court are another point of contention
The Supreme Court’s lack of a binding ethics code is a target for more legislative action.
The court has long faced questions over how justices police themselves off the bench. But a series of reports by ProPublica in 2022 documenting lavish travel Thomas accepted from GOP donor Harlan Crow added fuel to the debate.
The ethics code the court adopted in response failed to satisfy critics because it lacks an enforcement mechanism.
The Senate Judiciary Committee approved legislation in 2023 that would have required justices to adopt a code of ethics that is already in place for lower-court judges. The bill envisioned complaints being reviewed by a “judicial investigation panel” made up of five lower court judges.
But Republicans opposed the bill. GOP Sen. John Kennedy of Louisiana called it “dead as fried chicken on the Senate floor.”
Other Democrats sought to go further. Sen. Elizabeth Warren, D-Massachusetts, and Rep. Pramila Jayapal, D-Washington, proposed legislation in 2022 and 2023 to require the justices to adopt a binding and enforceable ethics code.
Their goal was to impose restrictions on gifts and privately funded travel for justices, a ban on trading individual stocks and a requirement for justices to provide written responses to recusal requests.
The legislation didn’t go anywhere.
Justices often side with Trump but he regrets when they don't
Even the president sometimes gets disappointed with his appointees.
Trump said he regretted appointing Gorsuch, Kavanaugh and Barrett after a series of losses on his tariffs policy, efforts to eliminate birthright citizenship and a push to restrict mail voting.
“This Supreme Court is bullied and cajoled by the Radical Left into making decisions that have set America back at least a hundred years,” Trump said in a social media post Sept. 15.
The Supreme Court sided with the Trump administration in a handful of redistricting cases that could boost Republican chances for holding their slim majorities in Congress. The court also sided with Republicans in a pair of campaign-finance cases dealing with broadcast advertising rates and party spending.
But the justices refused to allow the U.S. Postal Service to restrict mail-in ballots, one of Trump's top priorities. And the court repeatedly rejected a new Republican congressional map in Missouri.
Justice Elena Kagan, one of the court’s three liberals, has said the court has gotten a “bum rap” for supposedly being in Trump’s pocket.
“I think that that view of the court is wrong,” Kagan said Oct. 20 in public remarks at Catholic University Law School.
This article originally appeared on USA TODAY: Supreme Court isn't on the ballot. But in campaigns, it is hotly contested
