WASHINGTON — Justice Samuel Alito 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 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 Donald Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency.

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 condition of anonymity.

As recently as last month, Alito, a forceful conservative and reliable vote in favor of 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.

Alito and Thomas Are the Oldest Justices

But the state of the electoral map after Tuesday’s election generated speculation that he or Justice Clarence Thomas — the court’s two oldest justices — could quickly announce their retirements and give the president a brief window to push through a successor during the Senate’s lame-duck session.

Thomas, who is 78, and Alito, who is 76, did not respond to requests for comment about their plans.

Despite the public conversation, legal experts were largely agreed Wednesday that a speedy retirement was not guaranteed to secure a seat.

A nominee would have faced the newfound independence of departing Republican senators who may have had little appetite to help Trump ram through a nominee of his choice.

The Ginsburg Example

Both justices were on the bench when Justice Ruth Bader Ginsburg decided not to retire before the 2016 election, a decision many court observers consider a cautionary tale. Instead of allowing President Barack Obama to pick her successor, Ginsburg died while in office in 2020, creating an opening for Trump to replace the liberal icon with a conservative, Justice Amy Coney Barrett.

Now, conservatives fret that both men may be in danger of following Ginsburg’s example. If a Democrat were elected to succeed Trump as president in 2028, both Alito and Thomas would be in their 80s before a Republican could regain the White House and be in position to nominate a successor. Forecasts for when the GOP might regain control of the Senate are even cloudier.

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This article originally appeared in The New York Times.
By Ann E. Marimow/Haiyun Jiang
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