Edition · Thu 05 Nov 2026
Politics Desk
Alito and Thomas Are Staying Put, and the Right Starts to Worry About the Court
With Democrats taking the Senate in January, President Trump may finish his term without another Supreme Court appointment. People close to the court's two oldest justices say neither plans to leave because of the election.
By Rachel · Edited by Chanan Zevin - Chief Editor and Head of Desks
Published
Anxiety on the right
Tuesday's Democratic rout set off an immediate wave of unease among conservatives about the future of the Supreme Court. With Democrats set to control the Senate, which confirms justices, President Trump's chance to shore up the court's 6-3 conservative majority appears to have slipped away, unless something happens very soon.
Anxiety on the right
Multiple people close to Justices Samuel Alito, 76, and Clarence Thomas, 78, said on Wednesday that they did not expect either man to leave the court because of the election. Justice Alito, by those accounts, will not retire immediately despite the outcome.
'Historically great health insurance'
Some conservatives were blunt about the stakes. "I hope Clarence Thomas and Sam Alito have historically great health insurance plans," wrote Josh Hammer, senior counsel to a group that supports conservative judicial nominations. Florida Gov. Ron DeSantis warned that no justice would be confirmed under Mr. Trump "unless something happens in the next six weeks," adding: "That's not just true for these two years, that would likely be true for the four years after that."
'Historically great health insurance'
Both justices made clear before the term began in October that they did not intend to retire. Justice Alito told Bloomberg News he would stay on even if Democrats won the Senate, though he acknowledged to CBS News that retirement was "something I think that somebody at my age has to think about every term."
The Ginsburg comparison
The debate inevitably recalls Justice Ruth Bader Ginsburg, the liberal who declined to retire while Democrats controlled Washington and whose death in September 2020 allowed Mr. Trump to appoint Justice Amy Coney Barrett. Justice Alito, on the court since 2006, will be 78 when the next president is chosen in 2028. Justice Thomas, who marked his 35th anniversary on the court this week, will be 80.
The Ginsburg comparison
Those ages are not unusual for retirements. Justice Anthony Kennedy was 82 when he stepped down in 2018, and Justice Stephen Breyer was 83. Both conservatives appear to be in good health, though the court rarely discloses details.
A lame-duck gamble?
The worry has sparked speculation about whether either justice might step down during the lame-duck session, while Republicans still control the Senate. In 2020, Mr. Trump and Senate Republicans confirmed Justice Barrett in just over a month. But the conservative legal commentator Ed Whelan noted that several departing Republican senators "aren't going to be eager to do Trump any favors."
A lame-duck gamble?
There is no sign yet that the White House or Senate Republicans are planning such a fight. On Wednesday, both justices took the bench as usual to hear a death penalty case from Texas, showing little sign of the political calculations being made on their behalf. Justice Thomas, in particular, asked pointed questions, and drew a chuckle from his colleagues.