Politics alone suggests that one or both of the most senior justices should retire. But there’s always more to that decision.
Politics alone suggests that one or both of the most senior justices should retire. But there’s always more to that decision.
S hould Justice Samuel Alito retire from the Supreme Court? Is he about to? Maureen Groppe of USA Today rounds up commentary on the question, and other outlets have run similar efforts. It’s mostly pretty thin gruel, based on Alito having a book coming out in October (after the Court’s new term starts) instead of September, and based on him having passed the milestone of 20 years on the Court. Articles like this are sometimes written on thin evidence because the writer knows something he or she can’t print, or is trying to will a thing into happening. But sometimes, they’re just hunting for content. At a certain point, you can just run stories on the existence of rumors you started.
Publicly hectoring the justices into retiring is typically not effective, and can backfire. Alito has never given any indication of being the sort of man who is easily pushed around into doing things he doesn’t want to do. That’s especially the case where there’s no question of infirmity or diminished competence. Alito is still as sharp and incisive in arguments and opinions as he’s ever been. He’s still the justice an advocate least wants to be grilled by — the one who most frequently extracts concessions or flustered non-answers at argument that end up getting used against the lawyer’s client in a majority opinion. He’s still at the top of his game. There’s never been any public indication of health problems — unlike with Justice Clarence Thomas, who was hospitalized for a week in 2022, I can’t recall Alito ever having to miss time at the Court.
Two years younger than Thomas, Alito turns 76 on April 1 — the Court is hearing the birthright citizenship case on his birthday — so just based on age, he’s still about five years away from the point at which the last two justices to retire rather than die on the bench packed it in: Stephen Breyer was 83, and Anthony Kennedy was 81. Sandra Day O’Connor retired at 76, but she had personal reasons to do so, given her husband’s battle with Alzheimer’s. John Paul Stevens didn’t retire until he was 90. The last justice to retire relatively young was David Souter, who retired at age 69 in the early months of Barack Obama’s presidency. Then again, Justice Antonin Scalia died in office at 79, and Chief Justice William Rehnquist did so at 80. You don’t have to hang on as long as Ruth Bader Ginsburg to have the decision taken out of your hands.
Of course, as in O’Connor’s case, there can be personal reasons to quit — or to stay on — but those, too, are hard to detect or affect with outside influence. About the only interesting thing we got from surreptitious recordings of Alito and his wife in 2024 was a sense that the justice’s wife is weary of the constraints and scrutiny that come with being married to a sitting justice. But that may be less a committed opinion than an offhand bit of venting at the height of an intensely stupid controversy. Thomas, himself a famously immovable character, is sometimes thought to be biding his time to become the longest-serving justice: He’ll be second only to William O. Douglas by early May, but would need to stay on two more years after that to beat Douglas. Whether that’s actually important to Thomas or just conventional wisdom is itself a matter of speculation, but it may account for why the buzz at the moment (such as it is) focuses on Alito rather than Thomas. The third- and fourth-oldest justices are Justice Sonia Sotomayor and Chief Justice John Roberts, both 71; nobody expects either of them to quit voluntarily during this presidential term.
Both Alito and Thomas have been judges for a long time, each having begun their tenure as a circuit judge in the spring of 1990. Thomas has the more obvious legacy, given the distinctiveness of his approach and the large number of his clerks who have assumed prominent positions and are loyal to his intellectual project. But Alito, as the author of Dobbs, can be assured of a place in the Court’s history. Each is likely to add more memorable majority opinions this term. That alone isn’t enough to keep them on the bench.
The real question is how much value Alito and Thomas place on using the political timing of their retirements to ensure successors who won’t tear down their work — a consideration that has long played a key role for the justices — and, perhaps, how much trust they have in the current administration to choose good successors. On the latter score, many originalist thinkers have been nervous about what Donald Trump might do with an appointment this time around, without the sorts of influences in the White House and the Justice Department that helped him pick so many fine judges and justices the first time around. The pace of judicial appointments has been slow. If there’s a positive case, it’s that Trump is likeliest to choose a justice from the pool of people he’s already appointed to the appeals courts (as he did with Justice Amy Coney Barrett), and that gives him a lot of excellent choices. But again, we don’t know where the thinking of Alito and Thomas is on this. For that matter, we don’t know where their current thinking is on the current spate of challenges to the outer limits of presidential power coming from the Trump White House.
We do know from history that it’s harder to fill two vacancies on the Court simultaneously than one, which is why most observers don’t expect Alito and Thomas to step down together — at least, not for now, while the urgency is less than it might be late in Trump’s term if things are really going politically sour.
The big practical question is the Senate. Trump, or JD Vance if something happens to Trump, will hold the appointment power for three more years no matter what. But Republicans right now have 53 votes in the Senate — enough to ensure that they can confirm a conservative replacement even if that nominee doesn’t have the votes of Lisa Murkowski or Susan Collins, the least reliable members of the caucus. Trump could blow that with a far-out-of-the-box populist or cronyist choice, but a conventionally qualified, constitutionalist pick should have no difficulty getting confirmed — in 2026. That may not be the case in 2027. Two Republican seats are deeply endangered — Collins’s and the open North Carolina seat, in which former Democratic Governor Roy Cooper has led consistently in polls. While Republicans will fight tooth and nail to offset this by knocking off Jon Ossoff in Georgia and picking up open seats in Michigan, New Hampshire, and Minnesota, none of those look like very likely pickups at the moment. That puts Democrats one seat away from a 50-50 split (in which Murkowski is the swing vote to get the tiebreaker to Vance), and two seats away from taking control of the chamber. The remaining battlegrounds may be red, but there are a number that could go badly if the environment gets ugly enough: Ohio (where Jon Husted’s current polling is very tight against Sherrod Brown), Texas (where the scandal-plagued Ken Paxton would put the seat at risk if he wins his primary), Iowa (which has an open seat), and possibly even Florida or Nebraska.
So, if you were making the call based solely upon the political map about whether a Supreme Court justice concerned about ensuring a conservative-constitutionalist replacement should retire, you’d probably want Alito and/or Thomas to create an opening this spring to solidify the current majority. But there’s always more to these decisions than just politics. Alito and Thomas are both still good at their jobs and, to all appearances, both still enjoy their jobs. You could say both about far too few people in power in Washington these days.