Four: Per our own Sarah Isgur, he’s already hired clerks for several terms to come.
All told, the timing of his book release is thin gruel for retirement rumors. But combined with the fact that we’re eight months out from a midterm election in which Democrats’ chances of winning a Senate majority seem to grow by the day?
That makes things a little more interesting.
The case for retirement.
If not for Alito’s book, Clarence Thomas would be the more obvious target for retirement rumors. He’s a few years older than his colleague, has served on the court for much longer (14 years longer!), and has faced occasional health hiccups from which Alito has been spared. As the two most reliably right-wing votes on the court, it’s unthinkable that either man would want Democrats to be in a position to exert some power over their replacement.
But Thomas is less than three months away from becoming the second-longest serving justice in U.S. history and slightly more than two years away from becoming the longest-serving. It’s assumed that he’ll stick it out and go for the record, which makes Alito the only game in town for scenarios involving a pre-midterm court vacancy.
So let’s play along. The case for Alito retiring now is straightforward: If he waits, he risks making it difficult-to-impossible for Republicans to fill his seat with a conservative for the near- and possibly medium-term future.
It’s likely that Democrats will gain seats in the Senate this fall, and conceivable that they’ll gain control of the chamber. If Chuck Schumer ends up with a veto over Trump’s Supreme Court appointees, he and his caucus will likely refuse to fill any vacancy on the court before 2029. “Revenge for Gorsuch!” liberals will cry, remembering how Republicans held open Antonin Scalia’s seat in 2016 after Barack Obama nominated Merrick Garland to fill it.
Even if the Senate doesn’t flip in November, Republicans losing two seats and ending up with a 51-49 advantage next year will make confirming judicial nominees risky business for the GOP with Lisa Murkowski and (maybe) Susan Collins as the deciding votes. If Alito doesn’t retire now, in other words, he’s potentially stuck on the court until 2029.
But that seems optimistic, as no one would bet heavily at this moment on Republicans controlling the White House and the Senate after the 2028 election. Should Democrats retake the presidency, Alito would need to slog it out for four more years—and then potentially four more on top of that, as incumbent presidents usually win reelection.
Bottom line: If he’s determined to keep his seat in conservative hands, he can either quit in 2026 or he might need to serve until … 2037, when he’ll be 86 years old. (And there are no guarantees of Republican control in Washington then either!) Democrats learned a hard lesson a few years ago about elderly justices hanging on too long instead of stepping down when a like-minded president could successfully appoint their successor. Alito surely doesn’t want to replicate the Ruth Bader Ginsburg disaster.
“But what about election turnout?” you might say. “If he retires this summer and Republicans ram through a successor before the election, as they did in replacing Ginsburg with Barrett in 2020, Democratic voters will go ballistic. The expected blue wave might become a blue tsunami.”
In theory, sure, but I’m not sold. For one thing, Republicans did quite well in congressional races in 2020 after rubber-stamping Barrett and very nearly held onto the presidency. For another, Democrats’ enthusiasm to vote in November is already sky high such that there probably isn’t much room realistically for it to climb further. What sort of liberal has spent the past 13 months on the fence about Trumpist fascism but will tip over into apoplexy if the president gets to fill Sam Alito’s seat with another Alito-esque figure?
If anything, Alito not retiring after months of rumors to the contrary might be better turnout fuel for the left than a retirement would. It would remind Democratic voters that control of the Senate over the next two years isn’t just a matter of getting to investigate Trump, it’s a matter of getting to tie his hands when a court vacancy eventually opens.
There’s even a scenario in which Alito retiring this summer could boost Republicans’ enthusiasm to vote in November more so than Democrats’. Ed Kilgore recently recalled the so-called “Kavanaugh effect” that may or may not have helped the GOP to overperform in Senate races in the 2018: Democrats were so vicious in impugning Brett Kavanaugh during his own hearings, the argument goes, that outraged Republican voters showed up to the polls en masse to take revenge.
That theory is somewhat complicated, shall we say, by the fact that Democrats spanked Republicans in House races that year. But if you’re looking for reasons why Alito should exit stage right immediately, there you go.
The case against retirement.
Why might he want to stay on the court? Let us count the ways.
He’s not very old by SCOTUS standards, for starters. He’s also part of a right-wing majority that will likely persist until he does eventually retire, ensuring that he’ll continue to wield real influence over American jurisprudence for the rest of his career. It might frustrate him that he doesn’t exert the same leverage over outcomes that the court’s “swing voters,” Barrett and Chief Justice John Roberts, do. But Alito retains enough sway to have written the majority opinion in the most momentous culture-war decision of the past 50 years.
That’s a pretty good reason to hang on, no?
There’s also a ruthless political case for him to stick around related to the turnout discussion above. If the GOP wants to use a court vacancy to goose voter turnout, an Alito retirement in 2028 makes more sense than an Alito retirement in 2026.
Sure, turning the next presidential election into a referendum on who should get to fill an empty conservative seat would be the highest of high-stakes wagers for Republicans. But it worked out well for them the last time it happened, in 2016. And the trajectory of Trump’s presidency and likelihood of an underwhelming J.D. Vance candidacy two years from now could leave the right desperate for ways to get the base excited to vote in the next cycle. “A red seat on the court will turn blue if you don’t” is a good one.
Although I suppose Alito retiring this year and Thomas retiring in 2028 would cover all bases.
The argument against Alito retiring now that interests me most is this, though: As an ideological matter, he might not want Trump to have a completely free hand in appointing his replacement. He’s a conservative, last time I checked, and his successor is unlikely to share his philosophy.
Recently when the prospect of a court vacancy was raised, a lawyer I know floated appellate judge Andrew Oldham as a potential nominee. Oldham is whip-smart, under 50, and earned a valentine last year from George Will for an opinion that refused to let the FCC, an executive agency, impose a fee on phone users on grounds that the power to tax rightly belongs to the legislature.
A stickler on separation of powers: Sounds good to me. But is that what the president wants, or expects, from a “Trump judge”?
Ditto for Oldham’s professional affiliations. Not only is he a member of the Federalist Society, he delivered the keynote address at the group’s 2025 National Lawyers Convention. For most of the last 45 years, that would have been a top-flight credential for a Republican SCOTUS nominee.
Not anymore. “I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations,” Trump whined last year after a lower federal court blocked his tariff authority. He went on to describe Leonard Leo, the organization’s longtime adviser to the White House on judicial nominees, as a “sleazebag.” If the president felt that way then, imagine how he feels now that FedSoc luminaries Neil Gorsuch and Amy Coney Barrett have helped blow up his tariffs once and for all. Or how he’ll feel if and when they nuke his executive order purporting to deny birthright citizenship to the children of illegal immigrants, which is more likely than not.
It’s true that Trump has continued to nominate Federalist Society members for lower-court vacancies but I suspect that has to do with his comparative disinterest in those positions and the fact that there simply aren’t enough MAGA zombies in right-wing legal circles to fill every opening on the bench. He’ll react differently to a seat on the Supreme Court. The president doesn’t care a whit about originalism or credentials or, lord knows, impartiality. He cares about outcomes, and will undertake to find a nominee in his second term whom he believes will deliver the outcomes he desires.
He won’t want Oldham. He’ll want Aileen Cannon or Emil Bove.
Is that whom Justice Alito wants to be replaced by?
Maybe he does! He voted with the minority last week to uphold the president’s egregiously lawless tariff regime, after all. “Does anyone believe Thomas, Alito, or Kavanaugh would have voted to uphold unilateral Clinton, Obama, or Biden tariffs—of this magnitude?” pundit Matt Lewis asked afterward. The question answers itself.
If Alito wants a reliable Republican vote to succeed him on the court, the time to quit is now. It’s hard to imagine the GOP majority in the Senate saying no to the president, even if his nominee is unfit, with a national election mere months away. Trump momentarily has carte blanche to appoint the most reliable Republican vote he can find, which means the odds for a Justice Cannon or Justice Bove will never be higher than they are right now.
But if Alito wants to boost his chances of having a reliable conservative vote succeed him on the court, the time to quit is … later.
The gang of four. Or two. Or one.
The only way Trump will choose a conservative over a crony for a SCOTUS vacancy is if a majority in the Senate forces him to.
It could, in theory, happen even if Alito retires this summer. A “gang of four” composed of Lisa Murkowski, Thom Tillis, Mitch McConnell, and Susan Collins could hand the president a menu of potential court nominees whom they find acceptable and demand that he order from it if he wants their support. Oldham and other originalists would be on the menu, Cannon and Bove wouldn’t.
But, as I’ve said, I doubt that that’s realistic months out from a midterm. Murkowski and Tillis might be willing, as the latter is retiring and the former has gone full “maverick,” but it’s hard to imagine McConnell risking his legacy of painting the federal bench red by roadblocking a Republican Supreme Court nominee. And Collins, who’s on the ballot in November, would face a revolt at home in Maine among her right-wing base if she dared thwart god-emperor Trump on a matter as consequential as a SCOTUS seat.
If Alito wants a conservative to replace him, he might actually be better off waiting until the Senate is slightly less red. Next year, if the chamber is 51-49 in favor of Republicans, Murkowski and a partner to be named later—if one can be found—would be in the same position as the gang of four I described. (Collins is an obvious candidate if she’s still in office.) The “gang of two” could dictate terms to the White House on replacing Alito.
But what if Democrats reclaim control of the Senate this fall? Wouldn’t that kill any attempt to replace Alito over the last two years of Trump’s term?
Maybe. Probably. But not definitely.
If it’s 51-49 in favor of Chuck Schumer’s caucus, John Fetterman would have veto power over any Trump nominee. By voting with his party, he could keep Alito’s seat open for two years; by voting with the GOP, he could create a 50-50 tie for J.D. Vance to break. In that scenario Fetterman would be a “gang of one” with leverage to demand an ideological compromise on Alito’s replacement. No Cannons, no Boves, maybe no strict conservatives like Oldham either—but he might be open to supporting someone who resembles a traditional Republican nominee more so than the type of henchmen who tickle the president’s fancy.
That’s a good outcome for Justice Alito if he’d prefer to have his seat filled by someone like Brett Kavanaugh rather than Aileen Cannon, no?
And yes, I realize that Democratic voters would want to tar and feather Fetterman if he spoiled the party’s bid to keep Alito’s seat open by agreeing to a SCOTUS compromise with Trump. Guess what, though: Democratic voters already want to tar and feather him. The odds of him winning his party’s Senate primary in 2028 are about the same now, I’d guess, as Liz Cheney’s odds were of winning her House primary in Wyoming after January 6. Fetterman is either going to retire after this term or he’s going to switch parties and run as a Republican.
Either way, he’ll have the opportunity in a 51-49 Senate to become a “gang of one” next year if he wants to be.
The fascinating and potentially ominous thing about an Alito retirement is that it will reveal to what extent there remains any meaningful constituency for conservative jurisprudence among the president (giggle), Republican (and would-be Republican) members of Congress, and Alito himself. Each of the three has influence they can use to improve the odds that whoever lands in the justice’s seat is someone in the Scalia mold. Given how far the right has fallen civically, I’ll be surprised if any of them ends up using it.
