WASHINGTON – Speculation about potential Supreme Court retirements is intensifying as two of the nation’s oldest conservative justices approach typical retirement age, with political timing becoming a crucial factor in their decisions.
When questioned about the possibility of Justices Samuel Alito or Clarence Thomas stepping down, President Donald Trump expressed his desire for both men to continue serving on the nation’s highest court.
“I hope they’re going to be around a long time,” Trump stated to reporters on February 20, following the justices’ support of his position in a dissenting opinion regarding the court’s 6-3 decision that rejected his comprehensive global tariffs. “I hope they’re going to stay healthy. They’re great people.”
Neither Alito, age 76, nor Thomas, age 77, has publicly signaled any intention to step away from their lifetime appointments to the Supreme Court. Both justices declined to respond to Reuters inquiries about potential retirement plans for this year.
However, legal experts are increasingly discussing the possibility of a court vacancy as both men near the typical retirement age for Supreme Court justices since 2000, which averages around 80 years old. The approaching November congressional elections add another layer of complexity to the situation.
Should either justice retire, Trump would gain the opportunity to make his fourth Supreme Court appointment. The last president to name four justices was Republican Richard Nixon during his 1969-1974 presidency. Trump’s three previous appointments during his initial term created the current 6-3 conservative majority, which has significantly shifted American jurisprudence to the right since 2020.
ELECTORAL IMPLICATIONS
The Constitution grants the Senate authority to confirm presidential judicial nominees. Republicans currently maintain a 53-47 Senate majority. Should Democrats gain control of the chamber in upcoming midterm elections, they would likely attempt to obstruct any Trump nominee for a Supreme Court vacancy.
“The window for Trump to nominate a Supreme Court justice – or any federal judge – with a friendly Republican Senate could be closing by the end of this year,” explained John Yoo, who previously worked as a Justice Department attorney under Republican President George W. Bush.
“I think a conservative justice would want to retire during a time when an originalist would follow him or her, and that is most likely with Trump as president and the Senate controlled by Republicans,” Yoo continued, noting that Republicans may not simultaneously control both the White House and Senate again for several years.
Originalism represents an interpretive philosophy that constitutional language should be understood according to its meaning when originally written, a principle embraced by most of the court’s six conservative members.
Replacing either Alito or Thomas with another conservative would maintain the court’s current ideological composition while allowing Trump to appoint a younger justice who could potentially serve for decades.
Two additional septuagenarians serve on the court: conservative Chief Justice John Roberts and liberal Justice Sonia Sotomayor, both 71.
None of the court’s liberal members – Sotomayor, Elena Kagan (65), and Ketanji Brown Jackson (55) – are anticipated to retire soon. The same applies to Trump’s three previous appointees: Brett Kavanaugh (61), Neil Gorsuch (58) and Amy Coney Barrett (54).
THOMAS APPROACHES HISTORIC MILESTONE
Thomas, nominated in 1991 by Republican President George H.W. Bush, will next month achieve the distinction of becoming the second-longest-serving justice in Supreme Court history, trailing only Justice William O. Douglas, who served from 1939 to 1975.
Alito, who joined the court in 2006 following his appointment by George W. Bush, completed 20 years of service in January, while Roberts reached the same milestone last September.
Since 2000, five Supreme Court justices have chosen retirement while three died while serving. Justice John Paul Stevens holds the record as the oldest retiree at age 90 in 2010, while Justice David Souter was the youngest to step down at 69 in 2009.
Conservative Chief Justice William Rehnquist passed away at 80 in 2005, with Roberts, his former clerk, taking his place. Conservative Justice Antonin Scalia died at 79 in 2016, eventually replaced by Gorsuch after Senate Republicans blocked Democratic President Barack Obama’s nominee during his final year in office.
Liberal Justice Ruth Bader Ginsburg died at 87 in 2020. Many liberals viewed Ginsburg’s decision to remain on the court during Obama’s presidency as a strategic error. Her death allowed Trump to install a conservative replacement, creating the current conservative supermajority.
“I think it has to loom over everybody’s decision,” said Cornell Law School professor Michael Dorf regarding Ginsburg’s consequential choice to stay rather than retire to enable a like-minded successor.
Both Alito and Thomas appear to have no known serious health issues, though each has required brief hospitalization recently. Alito received treatment for dehydration on March 20 after becoming ill during a Philadelphia event, returning to work the following Monday. Thomas missed court arguments in 2022 while hospitalized with flu-like symptoms.
POLITICAL CALCULATIONS
Legal scholars note that political timing has become increasingly significant in retirement decisions during recent decades, alongside traditional factors like age and health.
According to the Brennan Center for Justice, the last justice to retire under political circumstances likely leading to replacement by an ideologically opposed justice was in 1991, when Justice Thurgood Marshall stepped down due to declining health.
George H.W. Bush replaced the liberal Marshall with the conservative Thomas, who received narrow Senate approval following a controversial confirmation process.
Current retirement discussions have centered primarily on Alito.
“I would be utterly shocked and speechless if Justice Thomas were to retire this year,” said Yoo, a former Thomas clerk now teaching at the University of California, Berkeley School of Law. “He is in great health and is performing at the top of his game.”
Court observers have identified several potential indicators suggesting Alito may be considering departure.
Alito secured his judicial legacy by writing the groundbreaking 2022 decision that overturned the 1973 Roe v. Wade ruling, which had established women’s constitutional abortion rights.
“Generations from now, if somebody looks up Samuel Alito in Wikipedia or whatever replaces it, that will be the first line,” Dorf observed. “He’s the justice who wrote the opinion overturning the right to abortion.”
Alito has also guided Supreme Court doctrine in a conservative direction across various issues including affirmative action, gun rights, and presidential authority, according to Dorf.
Alito’s upcoming book, “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country,” is scheduled for release on October 6. This publication date, occurring one day after the court’s next nine-month term begins, could complicate Alito’s ability to promote the book while serving as a justice.
“The October publication date is a pretty big tell since one can’t exactly go on a book tour during the first argument session of the term,” wrote Georgetown University law professor Steve Vladeck on his Substack publication, One First.
CONSERVATIVE PERSPECTIVES
Alito and Thomas have encountered minimal public pressure from conservatives to retire. This contrasts with liberal Justice Stephen Breyer, who faced intense pressure from the left to step down before the 2022 midterm elections, which he ultimately did, allowing Democratic President Joe Biden to nominate Jackson, his former clerk, as replacement.
Josh Hammer, a former clerk to Judge James Ho of the New Orleans-based 5th U.S. Circuit Court of Appeals, expressed measured views about potential Supreme Court retirements on his Newsweek podcast “The Josh Hammer Show.” Ho is considered by conservatives as a leading Supreme Court candidate should a vacancy arise under Trump.
“Far be it for me, again, to advise that Clarence Thomas or Sam Alito resign. They are the two greatest justices on the U.S. Supreme Court, by some order of magnitude,” Hammer stated.
“I am simply saying that if you are being as risk-averse and cautious as possible, that this is as good a time as any for one of, potentially both of them, to step down,” Hammer continued. “They’re not going to live forever – as much as we would very much love them to both live forever.”
Yoo predicted that conservative calls for Alito and Thomas to retire will remain subdued as long as they maintain Trump’s support.
“I think they will not come out in public unless President Trump gives some signal – that has been the story with the MAGA world generally on most issues,” Yoo said, referencing Trump’s Make America Great Again movement.
