Is Alito Making the Same Mistake as Ginsburg by Refusing To Retire?
The conservative justice is sticking around on the Supreme Court. Will conservatives come to regret it?
Do you remember the rumors that were swirling around earlier this year about the "impending" retirement of Justice Samuel Alito from the U.S. Supreme Court? Well, if you still harbored any lingering hopes or fears of those rumors coming true in 2026, Alito himself has now put them to rest.
"Obviously I'm here for another term," the justice recently told The Wall Street Journal. Ironically, the idea of Alito sticking around for a little longer is probably more popular right now among progressives than it is among conservatives.
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Remember that conservatives were the ones lobbying for Alito to step down in the first place. They have been desperate to avoid what we might call the Ruth Bader Ginsburg scenario, in which an aging justice remains on the bench so long that his or her party loses control of the White House or Senate (or both) and thus loses the ability to pick the justice's replacement. If the GOP loses control of the Senate in this year's midterm elections, those fears could be realized.
Progressives began publicly calling for Ginsburg's retirement as early as 2011, when the reelection of President Barack Obama was no certain thing. "If Obama loses," liberal law professor Randall Kennedy wrote in The New Republic, Ginsburg's failure to retire will "have contributed to a disaster." A few years later, when Democratic control of the Senate looked to be slipping away during Obama's second term, liberal law professor Erwin Chemerinsky took to the pages of the Los Angeles Times in a similar effort to push her out the door. "Only by resigning this summer," he wrote, "can [Ginsburg] ensure that a Democratic president will be able to choose a successor who shares her views and values."
Chemerinsky was proven right on that particular point. When Obama tried to appoint Merrick Garland to the Supreme Court in the spring of 2016 after the sudden death of Justice Antonin Scalia, the Republican-controlled Senate basically filibustered the nomination, keeping the seat open until the Republicans won the White House in the November election and President Donald Trump was able to appoint Neil Gorsuch to SCOTUS instead in 2017.
So Ginsburg really did lose her chance to retire when a Democratic president could have still picked her replacement. In the end, Ginsburg would remain on the Supreme Court until her death in 2020 at the age of 87. And then, of course, Ginsburg was replaced by Trump appointee Amy Coney Barrett.
Alito seemed to be mulling over these events when he discussed his non-retirement plans with The Wall Street Journal. "It's not pleasant, in the sense that it's a reminder of mortality," Alito said, referring to the conservative calls for him to move along for the good of the legal right. "It's like, what are those vultures doing up there? They are flying around. But it goes with life tenure."
Ginsburg also heard the buzzing of the carrion-feeders and chose to tune out the sound. Perhaps this is the rare case in which Alito is truly in harmony with Ginsburg. Like her, he may be perfectly content to continue doing a job he enjoys for as long as he possibly can—which just happens to be one of the most important jobs in the country—all while ignoring the circling vultures and disappointing his supposed allies.