The question I’ve been getting for the last 24 hours is “What the hell happened with Nina Totenberg?” Yesterday, NPR published her report that Justice Samuel Alito was retiring; about ten minutes later, the story was retracted with an editor’s apology. Totenberg, NPR’s veteran legal affairs reporter, has offered her explanation, if you can call it that. Here’s my theory and why what happened actually matters.
Totenberg is firmly on the left. I talk to SCOTUS-beat journalists pretty regularly, including liberal and senior ones, but I don’t think I’ve ever talked to Totenberg. I wouldn’t be surprised if this is also the case for other conservative judiciary “experts” like Mike Luttig or Norm Ornstein who aren’t, you know, “conservatives.” Totenberg is of the left and probably talks to the left.
The left is convinced in their bones that at least Sam Alito is going to retire. The rumors, you will recall, started early this year in places like The Atlantic. The left thinks Clarence Thomas is leaving, too. Democrats saw him go to the Capitol and thought, “He’s there to tell John Thune and Mike Johnson that he’s stepping down.” (I saw it and thought, “He’s probably there to see the attending physician, Dr. Monaghan.”)
They think this because they believe Republicans are utterly ruthless and without pity. Trump is the president. There are 53 Republicans in the Senate. The Court is a faithful adjunct of the MAGA movement. Surely Alito and Thomas want to keep that train moving because they’re dyed-in-the-wool Republican Party activists themselves. It would be insane for them not to go, really, and they’re not insane. They must be retiring.
Of course this is wrong. They aren’t party men and certainly don’t see themselves that way. They think they’re doing good work and feel fine. They both have people telling them they’re currently indispensable, including, at times, the president himself on Truth Social. Insofar as they worry about replacements, the future being an undiscovered country cuts both ways: they may be stuck or they may have even better opportunities.
Indeed, by all accounts, Thomas, for his reasons, seems intent on “leaving feet first.” He doesn’t seem to care one whit that this means there’s a significant possibility that he will be replaced by a trans DACA-recipient public defender.
Democrats refuse to believe that. Just as MAGA refuses to believe that someone like Justice Amy Coney Barrett simply reads the law sincerely but differently than Alito (instead attributing those of her votes that they don’t like to some combination of blackmail, corruption, and race-mixing), Democrats refuse to believe that Alito and Thomas have strongly held views on the judicial role that do not align with the long-term interests of the Republican Party.
Maybe Alito will suddenly decide he’s fed up and leave. If he does, though, it’s likelier to be for that kind of deeply personal reason and not because he’s reading my articles on the Senate calendar or Derek Muller’s quote-tweets of Ali Nathan’s picture whenever there’s bad political news for Republicans. He’s not a party man. Neither is Thomas.
Again, it goes to misunderstandings on the left and the right. Those on the left simply can’t get it through their heads that, while they see the Court as hopelessly partisan and driven by the arch-partisans Alito and Thomas, the conservative justices are not actually all that partisan — in particular Alito and Thomas. Yes, they hold very firm jurisprudential views that tend to favor Republicans in the moment and over time. There’s good reason to conclude that Alito, for example, is the jurisprudential avatar of Nixon’s “silent majority.” But they’re guided by their jurisprudence and their conception of the role of a justice, not by the interests of the GOP or the MAGA movement.
On the right it means that the conservative base needs to be careful what it wishes for. Because Alito’s and Thomas’s respective jurisprudence is somewhat likelier to align with administration priorities, those on the right also erroneously conclude that the justices must be party men. At the end of the day, though, we are far likelier to see Thomas replaced by Sparkle Sooknanan than, say, Roberts or Barrett.
“Nonsense,” you might say. “The guy who saved Obamacare is going to ensure he’s replaced by a Republican, but the most conservative justice ever isn’t?” Well, the guy who saved Obamacare in the Sixth Circuit, Jeff Sutton, did just that, while conservative stalwarts like Edith Jones, Jerry Smith, and Frank Easterbrook seem to have precisely zero interest in doing so.
Doctrinal firmness does not imply party loyalty. A Court of nine Clarence Thomases would be tremendous until Father Time, always undefeated, turned it into a court of nine Ketanji Brown Jacksons. A Court of nine Jeff Suttons might frustrate in the occasional big case, but it would eventually become a Court of nine Ben Flowerses.
Right and left should come to terms with the fact that the Court is not a GOP/MAGA blob, optimized to deliver lasting victories to Donald Trump. Each of the six Republican appointees has a very personalized view of his or her job and what it entails. Not one of them thinks that it’s maximizing the long-term interests of the GOP or President Trump — not even Alito or Thomas.