The clock on Donald Trump’s next Supreme Court pick started ticking the moment the Senate fell into Democrat hands.
Conservatives know exactly how fast that kind of window slams shut.
And Samuel Alito just told the people closest to him one thing the Right didn’t want to hear.
Samuel Alito Told His Friends He Isn’t Going Anywhere
Justice Samuel A Alito Jr doesn’t plan to retire from the Supreme Court right away, according to two people close to the justice who spoke to the New York Times on condition of anonymity.
Alito passed that word along to friends once the midterm results made it plain that Democrats had won the Senate races decisively.
That leaves Republicans in charge of the chamber for only a short stretch longer. When the new Senate gavels in come January, Donald Trump loses the votes he’d need to seat a fourth justice, never mind a fifth.
Alito, 76, never hid his hand. “I intend to stick around through this term,” he told Bloomberg News in an interview published in early October. “I made that decision many months ago.”
And Bloomberg asked whether he was a “firm no” on stepping down during a lame-duck session. Alito’s answer: “Yeah.”
He gave the Wall Street Journal the same message back in August. “Obviously I’m here for another term,” he said.
But the question clearly gnaws at him. Alito told CBS News that retirement is “something I think that somebody at my age has to think about every term.”
None of this should shock anybody. What changed after the votes came in is the size of the bill.
The Midterm Wipeout Just Got a Whole Lot More Expensive
Senate Majority Leader John Thune told Punchbowl News in July that a lame-duck confirmation “can be done.”
Nobody seems to be dusting off that plan now. CNN found no sign that the White House or Senate Republicans have even started thinking about a lame-duck confirmation fight.
And Justice Clarence Thomas, the Court’s oldest member at 78, has said again and again that he has no plans to leave.
Florida Governor Ron DeSantis has had plenty to say about the midterms, and his math on the Court landed like a bucket of ice water. “Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero,” DeSantis posted on X.
He put the odds under a future Republican President from 2029 to 2033 at “probably zero” too, betting the GOP can’t claw back enough Senate seats in 2028.
Maybe he’s too gloomy about 2028. Two years is a long time in politics. But it’s a short time for a man in his late 70s sitting on the highest court in the land.
But Republicans should also take a hard look at how they landed here. The neoconservatives who pushed Trump into the Iran war helped hand Democrats this Senate. Echelon Insights asked Trump 2024 voters who have since soured on the President what drove them away, and 15 percent pointed to wars and Iran while just 3 percent blamed tariffs.
The war crowd got its fight. Conservatives may now pay for it with a Supreme Court seat.
Ruth Bader Ginsburg Already Ran This Experiment
Conservatives don’t need a crystal ball here. They need a history book.
During Barack Obama’s second term, with Democrats holding the Senate, liberal commentators pleaded with Ruth Bader Ginsburg to retire while her party could still pick her replacement. She stayed put.
Ginsburg died in September 2020. Trump nominated Amy Coney Barrett, and the Republican Senate confirmed her weeks before Election Day.
The Left still tells that story as a cautionary tale. Now the Right gets to stare at the mirror image.
Alito will turn 78 before voters pick the next President in 2028. Thomas will be 80.
Cornell Law School professor Michael Dorf told Reuters he doubts either man would step aside in the coming months. “Absent an acute health crisis,” Dorf said, “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.”
Nakedly political. Democrats have treated Supreme Court seats as campaign props for 35 years, from the smear campaign against Clarence Thomas in 1991 to the circus they staged against Brett Kavanaugh in 2018. Senate Democrat candidates spent this fall running ads about this exact vacancy. Somehow the only people expected to keep politics out of it are the conservative justices.
A Democrat Senate Is Only the First Domino
A Democrat majority can sit on any Trump nominee until his term runs out in January 2029. Senate Republicans did the same to Obama’s pick in 2016, and Democrats have been itching to return the favor ever since.
But the bigger danger sits further down the road.
Back in 2021, congressional Democrats rolled out the Judiciary Act, a bill to stretch the Court from nine seats to 13. Court packing is a scheme to steal what Democrats can’t win under the Constitution’s rules and install a permanent Democrat majority on the bench.
Alito wrote the 2022 opinion in Dobbs v Jackson Women’s Health Organization that overturned Roe v Wade and sent abortion back to the states. A packed Court would come for that ruling first, then for the end of affirmative action, then for the Second Amendment protections conservatives fought decades to secure.
And the party taking over the Senate keeps sliding left. Its incoming class includes Abdul El-Sayed, who campaigned on Medicare for All, the socialist dream of handing Washington control over every doctor’s visit in America.
Trump holds the veto pen for two more years. After that, the only thing standing between Democrats and a rubber-stamp Court could be two justices pushing 80.
Alito has every right to serve on his own terms. He has earned that many times over.
But Ruth Bader Ginsburg thought she had time, too.
Sources:
“Justice Alito Will Not Retire Immediately, Despite Election Outcome,” The New York Times (via Election Law Blog)
“Supreme Court’s Alito Will Stay Even If Democrats Win Senate,” Bloomberg Law
“Democratic wave prompts GOP anxiety over Samuel Alito and future of Supreme Court,” CNN
“Justice Alito Says He’s Not Retiring,” HotAir (including Reuters reporting and Ron DeSantis’ post on X)
“Trumpy Justice Spills on Retirement Plan After Midterms Mess,” The Daily Beast
“Don’t Expect a Lame-Duck Supreme Court Vacancy (But There Are Other Nominations to Consider),” Reason / The Volokh Conspiracy
“Alito says he won’t retire during lame-duck session,” Politico