The Volokh Conspiracy
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Will Alito or Thomas Retire if Democrats Win the Senate?
While the Ginsburg example looms in the background, the answer depends on what values the justices are trying to maximize
Will Justice Thomas and/or Alito retire if Democrats take the Senate in tomorrow's election, hoping that the lame-duck Senate will confirm a nominee chosen by President Trump? In recent conversations, I've heard increasing speculation and support for this possibility among some judicial conservatives. And I hear corresponding worry among progressives.
Both sides think the election may create a brief, very consequential window for a Republican Senate to replace two aging justices. The GOP Senate would have to confirm their replacements before January 3, 2027. There would be political costs and procedural obstacles, but it could be done. Justice Barrett was confirmed by a Republican Senate within a month of her nomination on the eve of the 2020 election.
The rationale for retirement is straightforward: Don't get trapped in the actuarial straitjacket Justice Ginsburg found herself in when she failed to retire in 2014 (when she was 81). That was her last clear chance of retiring with a Democratic president and Senate.
Thomas is 78. Alito is 76. Neither has disclosed a serious health risk, and both have indicated they have no plans to retire this year.
But if Democrats take the Senate (prediction markets currently give them a 75% chance to do so) and if they play the sort of constitutional hardball over Supreme Court confirmations that Republicans have played in the past ten years, there's very little chance the new Senate would confirm any likely Trump nominee. Democrats needn't reject every possible Trump nominee--just those who would be likely to satisfy the conservative legal movement. So the president might not get another Supreme Court appointment before he leaves in January 2029. Calls for the eldest conservative justices to retire would surely intensify.
It's worse than that for judicial conservatives. If a Democrat wins the White House in 2028, the next opportunity for a Republican president to make an appointment might not come until January 2033. There are some important "ifs" packed in there, but they are well within the range of reasonable possibilities.
In January 2033, Thomas would be 84, Alito 82. Even assuming both remain healthy and active, that's a substantial amount of succession risk for conservatives to accept when they could potentially lock in their seats for another generation this winter.
A rational justice who prioritizes preserving his seat for something close to his judicial philosophy might well retire. But a rational justice might prioritize (or at least see himself as prioritizing) other things: continued service, jurisprudential influence, institutional reputation, and personal legacy. Justices do not see themselves simply as strategic agents of the political coalitions that produced their appointments.
For purposes of predicting what Alito and Thomas might do, the Ginsburg example cuts both ways. It illustrates the risks of refusing to retire when one's political allies control the presidency and Senate. At the same time, it illustrates the limits of assuming justices will subordinate their personal preferences regarding tenure, legacy, and judicial responsibility to the interests of that coalition.
Like Ginsburg, Thomas and Alito would probably resist renewed and intense calls for their immediate retirement. They might figure that:
(1) one of those additional "ifs" won't come to pass—that Republicans will retake the Senate in '28 or retain the White House;
(2) in any event, they'll outlast whatever period of Democratic control ensues (i.e., the mirror of the Ginsburg gamble);
(3) they've all but publicly committed themselves to staying on for now (Justice Alito says he will stay on through this term and Justice Thomas may want to pass Justice Douglas' record tenure, which would happen in May 2028); and/or
(4) a lame-duck retirement immediately after an electoral defeat would be seen as an unseemly concession to the sort of overtly political behavior by judges they've long publicly decried.
Progressives may dismiss this last consideration. Many critics see Thomas and Alito as essentially unscrupulous political actors who wouldn't hesitate to time their retirements in order to preserve another generation of conservative control. But that assumes they understand their own judicial behavior the way their harshest critics understand it. I doubt they do.
They may regard voting in accordance with their understanding of the Constitution—even when the results consistently advance conservative policy objectives—as fundamentally different from announcing their retirements immediately after voters have elected a Democratic Senate. In other words, they could see strategic retirements, which are hardly unprecedented among justices, as distinguishable from politicized judging. Choosing the circumstances and timing of retirement is compatible with their judicial philosophies. And many conservatives might well applaud their retirement decisions as responsible constitutional stewardship.
But a retirement announced immediately after the election to permit the outgoing Republican majority to confirm a successor, would be unusually conspicuous. Whatever their views about strategic retirement as a general matter, I'm guessing Thomas and Alito would regard the reputation cost to the Court—and to themselves—under these circumstances as too high.
The irony is that Ginsburg's cautionary example supplies the strongest argument for Thomas and Alito to retire, but a good reason to doubt they will. Justices may be political actors in some respects, but they are not necessarily the political instruments their allies wish them to be.
