Alito Tells Friends He Won’t Retire, but Republicans Fear Trump’s Window Is Closing

Justice Samuel Alito is not stepping down to give President Donald Trump one last Supreme Court pick before Democrats take control of the Senate in January.

Alito has told people close to him that he does not intend to retire immediately, according to two people close to the justice who spoke on condition of anonymity, The New York Times reported.

Multiple sources close to Alito and Justice Clarence Thomas also told CNN they did not expect either man to leave the court because of the election results.

The decision may mean Republicans have missed the window for Trump to name a fourth or even fifth justice in the final two years of his presidency, the Times reported.

Alito has been consistent. Asked by Bloomberg News in October whether he was a “firm no” on retiring during a lame-duck Congress, he answered, “Yeah,” CNN reported.

He has acknowledged thinking about it, however. Alito told CBS News in October that retirement is “something I think that somebody at my age has to think about every term,” according to CNN.

Neither Alito nor Thomas immediately responded to questions about whether they are considering retirement, Reuters reported.

Conservatives on Edge

The math worries the right. Alito is 76 and Thomas is 78, and both could be in their 80s before the next Republican president has a GOP Senate to confirm a nominee, CNN noted.

“I hope Clarence Thomas and Sam Alito have historically great health insurance plans,” Josh Hammer, senior counsel to a group that supports conservative judicial nominations, posted on social media Wednesday.

Florida Gov. Ron DeSantis was more direct. “No Supreme Court justice will be confirmed under President Trump’s administration unless something happens in the next six weeks,” he said.

“That’s not just true for these two years, that would likely be true for the four years after that,” DeSantis added.

A rushed lame-duck confirmation carries its own risks. Conservative legal commentator Ed Whelan noted that lame-duck senators such as John Cornyn of Texas and Thom Tillis of North Carolina “aren’t going to be eager to do Trump any favors,” CNN reported.

Some observers say an immediate exit would look too political anyway, including Cornell Law School professor Michael Dorf.

“Absent an acute health crisis, a decision to retire in the next several months would appear, and would in fact be, so nakedly political that I doubt Justice Alito or Thomas would take it,” Dorf told Reuters.

The comparison many conservatives are drawing is to Justice Ruth Bader Ginsburg, whose decision not to retire under a Democratic Senate let Trump name Justice Amy Coney Barrett after her death in 2020, CNN noted.

Alito wrote the 2022 opinion overturning Roe v. Wade. For now, he appears content to keep writing them.

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