Supreme Court Odds: Should Biden, Democrats Be Underdogs To Alter Court in 2021?

Written By Evan Scrimshaw on June 22, 2021
supreme court odds

One of the more important political – and more broadly, substantive – questions of the Biden era is the future of the Supreme Court, given the recent battles over the makeup of the Court. However, the PredictIt odds suggest a change is a longshot.

There have been three Supreme Court appointments in the last four years, two of which were triggered by deaths – the 2016 death of Antonin Scalia, and the 2020 death of Ruth Bader Ginsburg – and all of which have been the source of political controversy. And, therefore, the Court is now a source of political bets, and namely, whether the Senate will confirm a new Justice this year or not.

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Supreme Court Odds

If you believe the PredictIt consensus, Democrats are unlikely to appoint a new Supreme Court justice, with Yes trading at 25 cents, or an implied price of +300. With the Court’s summer recess imminent, the question of the Court’s future membership is now more than ever in question, and while there are compelling arguments on both sides, there is some value in this proposition.

Reasons To Bet No

The case for no is simple – the one Justice who could retire, Justice Breyer, is making it known that he does not want to retire, and therefore there’s not going to be a vacancy.

The logic, therefore, would be that one of the nine Justices would have to die for there to be vacancy, and while that can never be ruled out, the fact that five of the nine appointments come from the last two Presidents before Biden – and that all five of Trump and Obama’s appointments are of relative youth – does diminish the chance of old age taking a justice.

Beyond that, Chief Justice Roberts is also of relative youth, and there is no reason for active concern about the health of Breyer, Alito, or Thomas, as there was for so long about Ginsburg before her death.

Reasons To Bet Yes

The problem with that simple argument is that Ruth Bader Ginsburg died as a member of the Court and got replaced with Amy Coney Barrett, which was a substantial shift in the Court’s alignment. Ginsburg was approached to step down to avoid that possibility in 2013, when Obama still had the Senate, and did not, leading to Democrats and progressives holding their breaths for the four years of Trump, hoping and praying that he wouldn’t have the chance to nominate her replacement.

Having bet on good health and another opportunity down the line to retire once, Democrats could bring all their pressure to bear on Breyer to step down, to avoid a replay of the Ginsburg debacle. Trump 2024 election odds haven’t exactly diminished either.

Now, yes, Breyer could say no and stay on the Court, but it is hard to believe that he would be able to credibly say no to a full court press on the issue of his membership if it came, especially after losing the Ginsburg seat to a woman who claimed that homosexuality was a “sexual preference” during her confirmation hearing.

“I can do more good on the Court than the theoretical risk of some bad outcome down the line” could be seen as a perfectly reasonable answer from Ginsburg in 2013 when she was asked to consider her position, but now, in 2021, having seen that decision come to fruition and flop for Democrats, Breyer will find it much harder to make that case.

Partially because it hadn’t already failed for the party, and partially because of Ginsburg’s status as both the liberal lion of the Court but also a feminist trailblazer, there was a deference afforded her desire to stay on the Court that plainly does not exist for Breyer, because he is a relative unknown and we have all seen the way the GOP managed to flip a Supreme Court seat because of it.

That combined with no other seats likely being vacated before the end of October, and you start to at least see a path to how Democrats will confirm a new Justice.


While it might be the case that 2022 is more likely for a Breyer retirement (and subsequent replacement), it is by no means an overwhelming favorite, and the chances of it happening in 2021 are not nearly as slim as they may seem.

If Democrats get the chance to make the nomination, they will get their nominee on the Court, given their Senate majority. The fact that their majority is so slim – it is, remember, a 50/50 Senate – means that any chance of a “wait until 2022, what’s the difference”-style ambivalence will be non-existent.

And for good reason – they might not have the majority then. Democrats thought they’d have 60 seats for nearly two years in 2009, and then they lost it. They want to move fast.

Yes, Breyer may not retire, and there may be no Court politics until next year, or beyond. But the question isn’t odds-independent, and the case for why there will be a vacancy in 2021 is more persuasive than initially meets the eye. And the current odds are roughly a 3-1 underdog at PredictIt.

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