Justice Samuel Alito began his 22nd Supreme Court term last week, but even as he insists he will remain on the bench, speculation has grown over whether it could be his final one on the high court.
Alito, who was appointed by former President George W. Bush and confirmed to the Supreme Court in January 2006, has not publicly hinted at an imminent retirement or expressed a desire to step back from his daily duties. Alito, 76, told CBS News ahead of the new term that he thought about retirement but qualified it by saying that, at his age, stepping away is something he must consider annually.
“It’s something I think that somebody at my age has to think about every term. But I thought that I could still make a valuable contribution, which is why I became a justice and a judge in the first place. So that was basically it,” Alito said this month.
Additionally, he told Fox News last week that he has been “bemused” by the speculation about his future and that it is “not too pleasant to look up and see the vultures circling” with the discussion about the prospect of him stepping down from his duties.
Alito shuts down retirement talk, but speculation continues
Court watchers and conservative legal experts pointed to the upcoming elections as a catalyst for the questions about Alito’s future. Carrie Severino, president of the conservative advocacy group Judicial Crisis Network and a former law clerk to Justice Clarence Thomas, told the Washington Examiner that Democrats may be raising the possibility that Alito could retire to drum up support on the Left ahead of the midterm elections.
“There are a lot of people on the Left who would like to use the Supreme Court to drive turnout. They’ve been calling for an increasingly radical agenda of court packing, and this is just one more opportunity for them to try to demonize the court, even though Justice Alito hasn’t indicated he’s interested in retiring,” Severino said.
John Malcolm, vice president of the Edwin Meese III Institute for the Rule of Law at the conservative think tank Advancing American Freedom, suspects that a lot of the speculation is coming from the Right — specifically from Trump supporters who are hoping the president will be able to select Alito’s successor while in office. Conservatives may fear that an unfavorable result in the midterm elections could complicate the process for replacing Alito.
“I suspect that the speculation, probably more hope on their part, that he will retire before the end of the term is based on a prospect of the Democrats taking control of the Senate, or at least the three-seat majority that the Republicans currently entertain, being significantly narrowed, which will make it harder for President Trump to appoint a very solid conservative judge,” Malcolm told the Washington Examiner.
Conservatives wary of another Ginsburg scenario
Some conservative activists and court watchers pushing for Alito to retire want to avoid repeating a scenario in which the high court’s ideological balance is at risk just before an election, like what happened in 2020, when Justice Ruth Bader Ginsburg died. The long-serving liberal justice died in September of that year, weeks before the presidential election.
Ginsburg had resisted calls to retire during former President Barack Obama’s term. Democrats had both a majority in the Senate and Obama in the White House from January 2009 through January 2015. Ginsburg would reject retirement talks, expressing skepticism to Elle Magazine in 2014 that Obama would have been able to replace her, noting that the filibuster set a high bar for confirming a Supreme Court justice at the time.
“Anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided,” Ginsburg told the magazine at the time. “As long as I can do the job full steam … I think I’ll recognize when the time comes that I can’t any longer. But now I can. I wasn’t slowed down at all last year in my production of opinions.”
Republicans indeed retook control of the Senate after the 2014 midterm elections, and President Donald Trump won the presidential election in 2016. The Senate, under GOP control, removed the filibuster for Supreme Court nominees in 2017, four years after Democrats in the Senate removed the filibuster for all lower-court nominees.
Ginsburg died just four months before Democrats retook control of the Senate and the White House. But Republicans replaced Ginsburg quickly with Justice Amy Coney Barrett, who was appointed by Trump and confirmed by the Senate 52-48, shifting the Supreme Court’s ideological balance from a 5-4 conservative majority to a 6-3 majority.
Trump has publicly called for Alito to remain on the high court. In August, Trump posted on Truth Social that Alito staying on for another term was “Great news for our Country,” adding that he “is one of the Greatest of All Time” and that “We are all lucky!”
Republicans will hold a majority in the Senate until at least Jan. 3, 2027, and Trump will be in the White House through Jan. 20, 2029, but the upper chamber of Congress could change hands after the November elections or narrow the GOP’s 53-47 advantage. That would complicate replacing Alito with a conservative justice in the event he opts to retire in the years that follow.
“If the Democrats take control of the Senate, getting Trump judges through is going to be much harder in general, and particularly a Supreme Court justice,” Malcolm said.
Malcolm also noted that getting Trump-skeptical GOP senators on board with a Supreme Court nominee could be difficult even if Republicans do keep Senate control. Sen. Lisa Murkowski (R-AK), a Trump critic, did not support the confirmation of Justice Brett Kavanaugh, one of Trump’s nominees, in 2018, and Sen. Susan Collins (R-ME), who has kept her distance from Trump amid a tough reelection battle, did not support Barrett in the 2020 Senate confirmation vote.
“And then, with respect to what’s going to happen in the next presidential election, it’s anybody’s guess,” Malcolm added.
Retirement a deeply ‘personal’ decision
Supreme Court justices serve life terms on the bench, with many either dying in office or deciding to retire when they feel they can no longer continue their duties. The decision to retire is a “very personal decision” for each justice, Severino told the Washington Examiner.
“It’s hard to generalize,” she said. “Justices have considered their spouses and their health and their desire to be able to enjoy their retirement with their spouse or their grandchildren, or their great grandchildren. All of those things factor in.”
Since 1990, there have been 12 Supreme Court vacancies, with nine coming as a result of retirements and three coming from justices’ deaths, which include Ginsburg at age 87, Chief Justice William Rehnquist in September 2005 at age 80, and Justice Antonin Scalia in February 2016 at age 79. Justices typically don’t cite their specific reasons for stepping down in their official retirement letters to the president, but many later say spending time with family became a higher priority after years of service.
Malcolm noted that Alito has had a long and “distinguished” career and that, at some point in the future, he may choose to retire rather than serve out his final years of life on the bench. Alito may want to get out of Washington or pass the torch to the next generation, Malcolm said, but likely won’t make the decision around who controls the Senate and White House. Severino echoed the idea that Alito isn’t likely to prioritize political considerations if and when he retires.
“I think sometimes we think of it purely in terms of strategy, and I’m sure that’s on their radar as well. Do I want to be replaced by someone of a similar approach to the law? But I think this is a much more personal decision than most people on the outside give it credit for,” Severino told the Washington Examiner. “To the outside world, it’s purely a matter of politics and strategy. And to the justices themselves, this is their livelihood. This is their legacy. This is their work that they are very passionate about and take a lot of pride in.”
This Supreme Court term features several cases that deal with issues of particular interest to Alito. In November, the court will hear St. Mary Catholic Parish v. Roy, which deals with religious freedom in Colorado’s universal preschool program, while in December, the court will hear Viramontes v. Cook County, a key Second Amendment case over the legality of sweeping “assault weapons” bans.
“I think that’s why he’s on the court right now,” Severino said. “It’s an interesting term, and we only have the tip of the iceberg in terms of the number of cases accepted so far.”
With the Supreme Court becoming increasingly conservative since he joined the bench in 2006, Alito has had the chance to author several landmark rulings, including 2022’s Dobbs v. Jackson Women’s Health Organization, and could continue to do so with cases this term.
“He’s made his mark in a whole host of areas, and I think he is very highly respected in conservative circles, and he spent a long time where he was in the minority, and now he’s not,” Malcom said.
Mixed results in previous outside pressure campaigns
While many justices make retirement decisions on their own timelines, some activists on the Left and Right want to preserve their seats on the bench for their side of the aisle and mount pressure campaigns aiming to get justices to retire strategically.
“An unfortunate aspect of the job is that you have people who seem to be counting down the minutes until you retire, and that obviously applies on both sides,” Severino said. “You had groups during Justice [Stephen] Breyer’s final year on the court that were running ads on trucks in front of his house saying ‘Retire, Breyer.’” That was incredibly disrespectful to the justices.”
The most recent justice to retire, Breyer, faced a vocal pressure campaign from left-wing activists to step down while Democrats had control of both the White House and the Senate. Activists began pushing for Breyer, who had served on the bench since 1994, to retire in 2021 shortly after President Joe Biden was sworn into office, with Ginsburg’s death and her replacement still fresh in their minds.
Breyer would initially resist calls to retire in 2021, leading to uproar on the Left. The left-wing group Demand Justice called his decision “about ego” and said Breyer was “acting recklessly” by not stepping down. In January 2022, Breyer announced his retirement, effective at the conclusion of the term, and Justice Ketanji Brown Jackson replaced him.
Ginsburg’s sudden death and replacement with Barrett in 2020 had such an effect on some liberal court watchers that in 2024, some activists pushed for Justice Sonia Sotomayor, appointed to the Supreme Court in 2009, to consider retirement while Biden was still in office and Democrats still controlled the Senate. The pressure campaign was not endorsed by most left-wing groups or politicians, and Sotomayor, who turned 70 in 2024, was not interested in considering retirement.
“People were very upset that Ruth Bader Ginsburg decided to stay on the court, even though I think people expected that that would work out OK. Turns out it didn’t for the Democrats,” Malcolm said.
More recent pressure campaigns to get a justice to retire have largely focused on Alito, who has served on the high court since 2006, rather than Thomas, who is older than Alito and has been on the Supreme Court longer. One reason for the greater focus on Alito is that Thomas has already hinted at how long he plans to serve.
“Justice Thomas has made it very clear that he wants to stay on to be the longest-serving justice in history,” Malcolm told the Washington Examiner.
Thomas is the second-longest-serving justice in history and is expected to become the longest-serving in May 2028. He also faced one of the most intense and contentious Supreme Court nomination processes in recent history in 1991, and he has emerged as a conservative icon on the bench during his nearly 35 years on the bench.
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“He’s also made it very clear that nobody, under any circumstances, is going to push him out, and that he likes to be around to bedevil his enemies,” Malcolm added.
This Supreme Court term is expected to go through the end of June 2027.