Judging the Alito Retirement Rumors
Is the conservative Supreme Court justice planning to retire this year?
Is U.S. Supreme Court Justice Samuel Alito planning to retire when the Court's current term wraps up this summer?
A quick survey of recent SCOTUS-related headlines might leave you with that impression. "Is Sam Alito on his way out?" asks the Strict Scrutiny podcast. "Is Samuel Alito preparing to disrobe?" wonders The Nation. "Will Trump get a fourth Supreme Court justice? Speculation swirls around Alito," reports USA Today.
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At the center of this swirl of speculation is the October 6, 2026, publication date of Alito's forthcoming book, So Ordered: An Originalist's View of the Constitution, the Court, and Our Country. What makes that particular publication date stand out is the fact that the Supreme Court's 2026–2027 term officially kicks off on October 5, just one day earlier. So, the speculation goes, how will Alito possibly find the time to both successfully promote his new book and fulfill his various duties as a justice during this especially busy period on the Court's calendar? But, the speculation continues, if Alito is currently planning to retire, that means he will be left with plenty of free time to hawk his tome this fall. (Books don't exactly promote themselves, you know. Every author has got to put a little hustle on it.)
Another key factor in this swirl of speculation is the example set by the late Ruth Bader Ginsburg. The "notorious RBG" famously rebuffed many calls from progressive activists who implored her to step down while the Democrats still maintained control of both the White House and the Senate, which would have basically guaranteed that a like-minded liberal jurist would have been the one to replace her.
But Ginsburg opted to stick around on the bench for several more years, which meant that when she died in 2020 at the age of 87, her replacement—Amy Coney Barrett—was picked by President Donald Trump and confirmed by a Republican-led Senate. So, the thinking now goes, perhaps Alito might want to avoid pulling a Ginsburg and prevent the creation of a scenario under which his eventual replacement is picked by a future Democratic president. Maybe Alito is now looking to get out while the getting is still good.
On the other hand, Alito has only been a justice for twenty years, which is not really such a long stint nowadays on the high court. When Justice Anthony Kennedy voluntarily stepped down in 2018, for example, he had served for just over three decades. Similarly, when Justice Stephen Breyer voluntarily retired in 2022, he had been on the Court for just short of three decades. The 75-year-old Alito is not exactly a spring chicken, to be sure, but if his health holds out, he may have many more judicial clucks left to give in the decade ahead.
Incidentally, Justice Clarence Thomas, who is 77, has now been on the Court for 34 years, which makes him the fifth longest-serving justice in the Court's history. And Thomas, like Alito, might also prefer to avoid following the Ginsburg path when it comes to the eventual selection of his replacement. Of course, Ginsburg did serve on the bench with distinction until the end of her life, which might actually be the example of hers that her judicial colleagues would prefer to follow.
It is also worth noting that being a Supreme Court justice is an important and powerful job, and many people would find it difficult to voluntarily relinquish that kind of importance and power. Why step down from the commanding heights of the U.S. legal order when you don't have to?
For now, I remain mostly skeptical of the Alito retirement rumors, but I decline to dismiss them outright. At the very least, the idea of Alito (or Thomas) retiring this year is conceivable.
