Replacing Alito or Thomas in the Lame-Duck Session Would Guarantee Democratic Court-Packing

The Dispatch’s Sarah Isgur points out — in response to more than a few conservatives who are clamoring for Samuel Alito and/or Clarence Thomas to retire while there’s still a Republican Senate majority to confirm their replacements — that there is technically no need for either justice to retire before year’s end.

Alito won’t retire in the lame duck and he doesn’t need to. Trump can nominate someone to the Supreme Court and the senate can confirm without a vacancy. Then Trump can wait to sign the commission any time in the next two years. The question isn’t Alito, its Cornyn/Tillis/Thune.

— Sarah Isgur (@whignewtons) November 5, 2026

To be clear, I think Isgur is explaining the legal realities of the confirmation process, not necessarily advocating this course of action. The reality of “normal” SCOTUS replacement confirmations follows the same overall pattern of this hypothetical nuclear option: i.e., a justice typically formally retires upon the Senate’s confirming his or her replacement. There’s not actually an opening when the Senate votes.

The whole thing is largely a moot point because neither the 78-year-old Thomas nor the 76-year-old Alito have given any sign that a retirement is imminent. Still, conservatives who are arguing for a retirement now, while there’s still time for a Republican Senate to vote, ought to be a little more cautious.

A significant minority of Democrats — especially the bleeding edge progressives types — are already committed to packing the Court over (what they view as) a decade’s worth of illegitimate conservative nominations that built the current 6–3 majority. But nothing on earth would be more guaranteed to commit every last elected Democrat — blue dogs, business-class moderates, and democratic socialists alike — to a jihad against the Court over the next few years than confirming replacement justices during this lame-duck session, hard on the heels of the greatest electoral repudiation of the incumbent party in 50 years.

I’m not saying that there isn’t precedent for confirming justices during the lame duck. I’m not saying it wouldn’t be legal. I am saying that what’s possible and what’s prudent in politics is contingent on the political reality — and it’s hard to see a better way to galvanize a concerted attack on the Court than an aggressive move before January 3, 2027, when the new Senate will gavel in.

The 6–3 conservative majority is very much in danger. But conservatives need to be ready to play defense — perhaps for years. For starters, a conservative could win the presidency in 2028, which — even with a Democratic Senate — would provide strong leverage to confirm an acceptable replacement. Second, conservatives can play defense in the Senate, protecting the norm of the filibuster and winning over at least a few moderate Democrats to that point of view, which would become especially important should a Democrat win in ’28. Third, conservatives can go to the people to try to win public support in defense of the Court and against Democratic constitutional mischief. In the end, it was public unease with FDR’s Court-packing schemes that saved the nine-justice Court in the ’30s.

This is no easy task. But after Tuesday’s wipeout, conservatives don’t have a whole lot of realistic options. Let’s hope Thomas and Alito can hold on. It might be a long wait.