< What could happen at the Supreme Court under Harris and Trump

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The upcoming election, now less than a week away, could reshape the U.S. Supreme Court - or not, depending on retirements, deaths and other unforeseen events. The only certainty is the potential for political struggle. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Depending on who wins the presidential election and control of the Senate, the current 6-3 conservative supermajority could remain the same, be trimmed to 5-4 or expand to an even larger and more lopsided conservative majority. The public, for the most part, understands that if there's a Supreme Court vacancy, the president's nominee will generally reflect the president's views. But there is a genuine possibility that if the Senate is controlled by the opposition party, any open seat will remain unfilled, not for months, but for years.

Indeed, there is also a real possibility that lower court seats will go unfilled unless there's significant backroom horse trading. In short, with power split between the White House and the Senate, there could be unprecedented gridlock on judicial nominations that extends all the way up to the Supreme Court and down to the appellate and even district courts.

In recent years, Republicans have wielded their power in unprecedented ways to prevent a Democratic president from filling a Supreme Court vacancy. They did that in 2016, blocking any consideration of Obama nominee Merrick Garland for nearly a year. Four years later, with Trump in the White House when Justice Ruth Bader Ginsburg died, Senate Republicans rapidly pushed through the confirmation of judge, now justice, Amy Coney Barrett just weeks before the election.

This year, conservatives are even more determined to keep or expand their 6-3 Supreme Court majority. So what happens if Kamala Harris is elected president but the Senate flips to Republican control?

JOSH BLACKMAN: They'd just say we're going to give you the Merrick Garland treatment.

TOTENBERG: Conservative scholar Josh Blackman.

BLACKMAN: We'll have a seat open for three or four years.

TOTENBERG: Would the reverse happen if Trump is elected but the Senate remains in Democratic hands? Harvard Law Professor Noah Feldman, who's written extensively about the court's history, says that Republicans essentially crossed the Rubicon in 2016 with the Garland nomination.

NOAH FELDMAN: Given that, we're now, I think, in a world where - following the controversial, conservative, revolutionary decisions that have come at the court - neither party would be likely to give a positive vote to a nominee of the president from the opposite party.

TOTENBERG: Democrats like to think of themselves as more responsible than Republicans, but the pressure would be enormous to do unto Republicans what they did to the Democrats. NYU Law Professor Bob Bauer served as White House counsel for two years during the Obama administration. He isn't sure what Democrats would do if the shoe was on the other foot, but...

BOB BAUER: This whole notion of a certain process that has to be respected, regardless of the potential political impact on one party or the other, is not a norm because it doesn't command general adherence.

TOTENBERG: So what if Trump is elected and the Senate flips to Republican control? The only thing then standing between nomination and confirmation would be two moderate Republican senators, Lisa Murkowski and Susan Collins. If the margin is 52 to 48, their votes aren't needed. Vice President JD Vance would cast the tie-breaking vote.

So what recourse would the Democrats have in a situation like that? How would they fight a Trump nomination? We would largely be left with the politics of personal destruction, investigating every aspect of a nominee's life to find something disqualifying, said one Democrat who spoke candidly on condition of anonymity. Of course, right now, there is no vacant seat on the Supreme Court. Justice Sotomayor, at age 70 - the oldest Democratic appointee - has said emphatically that she has no plans to retire. And while the deaths of justices Scalia and Ginsburg proved that nothing is certain, they were far older than any of the current members of the Supreme Court.

Today, the two oldest justices are among the most conservative. Clarence Thomas is 76 and Samuel Alito 74. Some of the most politically active conservative thinkers would like to see them step down and be replaced by younger conservative judges who could serve for many decades longer and move the conservative needle even further to the right. But those who know Thomas and Alito are adamant that neither man would leave the court at this point. Several of their friends agreed to speak candidly about the prospect of retirement if they were not identified by name.

What would Alito do, asked one friend, go home and fly flags with his wife at the beach? The court is his life, said another. As for Thomas, while some theorize that he might enjoy retirement, his close friends say there's no way he would retire. They say he would see that as caving into his critics and essentially being driven off the court. Thomas is by far the most senior member of the current court. Indeed, after the next president is sworn in, the justice will be serving during his 11th presidential administration.

Nina Totenberg, NPR News, Washington.

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