With everything else happening last night, you may not have spared a thought for the future of the Supreme Court. But with Democrats taking control of the Senate, there's very little time left in President Trump's second term for him to switch out a current Justice for someone who might be around longer.
Not to put too fine a point on it, but Justice Thomas is 78 years old and Justice Alito is 76. They are the two oldest justices on the court and if they don't retire now, they'll be in danger of making the mistake that Justice Ginsburg made, i.e. waiting a bit too long and being replaced by a president from the opposite party.
I don't know if anyone has asked Justice Thomas about his plans, but Alito has made it clear he's not going anywhere.
Justice Samuel A. Alito Jr. has told people close to him that he does not intend to retire immediately from the Supreme Court, despite Democrats’ commanding win in Senate contests on Tuesday, which means Republicans will hold the chamber for only a short time longer.
As a result, Republicans may have missed the window for President Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency.
Justice Alito shared his plans with friends after the election results were clear this week, according to two people close to the justice who spoke on the condition of anonymity.
As recently as last month, Justice Alito, a forceful conservative and reliable vote in favor of Mr. Trump’s policies, had rejected the idea that he would step down if Democrats took control of the Senate.
“I intend to stick around through this term,” he told Bloomberg News, in an interview published in early October.
And it turns out that Reuters asked both Thomas and Alito about their plans in light of the election results and neither one responded.
Thomas has given no public indication of wanting to step down. Alito said last month he would remain for the duration of the current nine-month term, which began in October, even if Democrats were to retake the Senate. Thomas and Alito did not immediately respond to questions from Reuters about whether they are considering retiring.
But some observers said that even if one or the other wanted to keep the seat in conservative hands, it would be too "nakedly political" to resign before the new Congress is sworn in.
Although justices mulling retirement often consider the politics of the president and party control of the Senate in making a decision, "they do not like to broadcast that they do so," Cornell Law School professor Michael Dorf said.
"Absent an acute health crisis," Dorf said, "a decision to retire in the next several months would appear, and would in fact be, so nakedly political that I doubt Justice Alito or Thomas would take it."
What this means is that we're likely to see these retirements in a few years when there is still a Democrat-controlled Senate. Governor Ron DeSantis pointed this out yesterday.
Assuming Republicans lose the seats where prediction markets have the Democrats at 90+% to win, that would produce 55 Democrat Senate seats. Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero. Chance of confirming a worthy successor during a hypothetical GOP admin 2029-2033: probably zero (GOP won’t be able to recapture enough seats in 28).
— Ron DeSantis (@RonDeSantis) November 4, 2026
I don't want to be ghoulish, but I don't think Thomas or Alito are likely to be healthy enough to still be working in six years. So what I'm sort of saying is that, unless something extraordinary happens, the conservative Supreme Court majority is also on the clock now. Maybe it lasts two more years or even four but the chances of it continuing long enough to get another Republican Senate look pretty dim at the moment.
On the positive side, maybe this will also dim the Left's enthusiasm for packing the court with four more justices. We'll have to wait and see.
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