How Low Would Sam Alito Go?

Catching up with post-vacation news over the weekend, I happened upon this somewhat mortifying story about NPR’s veteran Supreme Court reporter Nina Totenberg, who reported (incorrectly, it turns out) that Samuel Alito had announced his retirement. (There but for the grace of god….) Totenberg quickly retracted the report and apologized to readers and Alito in a manner befitting the magnitude error. But it stands to reason that she and the rest of the Supreme Court press corps were unusually primed to make an error like this, because so many people expected Alito to retire now, while Republicans control the U.S. Senate.

Two weeks later, we’re well into the court’s summer recess, and some progressives are (cautiously, tepidly) breathing a sigh of relief: Neither Alito nor Clarence Thomas seem poised to retire before the election. Thus if Democrats win handily enough to claim control of the Senate, they’ll have the entire right wing in a bind.

Alito is 76; Thomas is 78; They’re both reportedly eyeing retirement, but both also clearly want to be replaced by younger, partisan Republican justices. Yet if Democrats control the Senate, they can embargo Trump’s judicial nominees—deny them fair hearings just as Republicans denied a fair hearing to Merrick Garland in 2016.

Then if Democrats win the presidency in 2028, those guys will have to hang on for dear life, well into their eighties, through 2032 at the earliest. If both were to retire or die when Democrats control the White House and Senate the balance of power on the court would flip from 6-3 Republican to 5-4 liberal. Incumbent Democrats would feel relieved of their moral obligation to expand the court.

Maybe figures as nakedly political as Alito and Thomas would roll the dice like this. But my strong hunch is: no they fucking wouldn’t, not even if they knew retiring strategically would result in immediate and painful death. I simply do not believe that either man, let alone both men, would take such a huge risk, tempting such a huge strategic error. We know enough about each justice’s character—Thomas’s bribe-taking and proximity to insurrection; Alito’s vicious, millenarian partisanship—to suspect subterfuge. At the very least we should suspect they’ve been given assurances that they’ll be replaced by hook or crook before Republicans lose power; but it’s not crazy to wonder whether they’ve struck an even deeper collusive bargain.

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The sense of false comfort is rooted in norms that Donald Trump and the modern GOP simply don’t honor.

We’ve become accustomed to “strategic retirement” wherein justices time their departure from the court to ensure they’ll be replaced by ideologically aligned successors. This is what Stephen Breyer did, and he was replaced by his former clerk Ketanji Brown Jackson. In Anthony Kennedy’s case, he reportedly pressured the White House to replace him with his former clerk, Brett Kavanaugh.

But both Breyer and Kennedy, per custom, announced their retirements in a “normal” manner: Kennedy at the end of the court’s annual term in late June; Breyer in January, but with his actual retirement deferred until the summer, and the confirmation of his successor. This norm allows a retiring justice to make a clean break, with no cases pending, and typically ensures that confirmation fights don’t become too entangled with electoral politics.

But nobody has to honor those norms. God didn’t honor them when Ruth Bader Ginsburg died in September 2020; Donald Trump didn’t honor them when he nominated Amy Coney Barrett to replace her less than two weeks later. And Mitch McConnell didn’t honor them when he and the Senate GOP confirmed Barrett less than a month after that, just days before Trump lost his campaign for re-election.

Which is another way of saying the Senate GOP knows how to get a Supreme Court confirmation done in less than six weeks, which is in turn shorter than the lame duck period between the November election and the seating of a new Congress.

You see where I’m going with this: If Alito or Thomas or both men want to maintain optionality—maybe serve for another term or two—they can await the results of the election. If Republicans hold the Senate, they can stay on the bench for the time being. Thomas can become the longest-serving justice in history. But if Democrats win—and Republicans can’t manage to overturn their victory—either man or both men can retire in November, and give way to 40-year-old MAGA justices before Christmas.