As the Ginsburg precedent lingers in the background, the outcome depends on which values the justices seek to advance.
Would Justice Thomas and/or Justice Alito step down if Democrats capture the Senate in tomorrow’s vote, hoping a Republican-dominated lame-duck chamber would approve a nominee selected by President Trump? In recent discussions, I’ve seen rising speculation and backing for this path among some conservative jurists, accompanied by corresponding unease among progressives.
Both camps anticipate that the election could open a brief yet highly consequential window for a Republican Senate to replace two senior justices. The aftermath would require the new Senate to confirm their successors before January 3, 2027. There would be political costs and procedural hurdles, yet it could be done. Justice Barrett’s confirmation occurred quickly under a Republican Senate, within roughly a month of her nomination, on the eve of the 2020 election.
The case for retirement is straightforward: it avoids falling into the actuarial trap that trapped Justice Ginsburg when she declined to retire in 2014 (at age 81). That moment was her clearest chance to leave office with a Democratic president and Senate in control.
Thomas is 78. Alito is 76. Neither has shown meaningful health concerns, and both have indicated they do not plan to retire this year.
But if Democrats win the Senate (markets currently assign about a 75 percent probability to that outcome) and if they wield the same kind of constitutional hardball over Supreme Court confirmations that Republicans have employed over the past decade, the odds that the new Senate would approve a likely Trump nominee are slim. Democrats needn’t reject every conceivable Trump candidate—only those likely to satisfy the conservative legal movement. Consequently, the president might not secure another Supreme Court appointment before leaving office in January 2029. Calls for the oldest conservative justices to retire would likely intensify.
The situation is even more challenging for judicial conservatives. If a Democrat wins the White House in 2028, the next opportunity for a Republican president to appoint a justice might not arise until January 2033. There are important “ifs” embedded here, but they remain within the realm of plausible possibility.
In January 2033, Thomas would be 84 and Alito 82. Even assuming continued health and vigor, that represents a substantial risk of turnover for conservatives to bear when they could potentially secure their seats for another generation this winter.
A rational judge who prioritizes preserving his seat in line with his judicial philosophy might decide to retire. Yet a rational justice could also weigh other aims—continued service, influence on jurisprudence, institutional standing, and personal legacy. Justices do not view themselves merely as strategic agents of the political coalitions that backed their appointments.
When predicting what Alito and Thomas might do, Ginsburg’s example offers both caution and cautionary nuance. It shows the hazards of resisting retirement when the presidency and Senate are in one’s political camp, while also underscoring the limits of assuming justices will bow to the coalition’s interests at the expense of their own tenure, legacy, and duties.
Like Ginsburg, Thomas and Alito would likely resist renewed and intense calls for immediate retirement. They might reason that:
(1) one of those additional “ifs” will not come to pass—that Republicans will regain the Senate in ’28 or retake the White House;
(2) in any event, they’ll outlast whatever period of Democratic control follows (i.e., the mirror image of the Ginsburg gamble);
(3) they have almost publicly committed to remaining on the bench for now (Justice Alito states he will stay through this term, and Justice Thomas may seek to surpass Justice Douglas’ record tenure, which would occur in May 2028); and/or
(4) a lame-duck retirement immediately after an electoral defeat would be seen as an unfortunate concession to overtly political behavior by judges they have long condemned.
Progressives may dismiss this last consideration. Many critics portray Thomas and Alito as essentially unscrupulous political actors who would not hesitate to time their retirements to preserve another generation of conservative influence. But that presumes they understand their own judicial conduct as critics do—and I doubt that they do.
They may view voting in line with their understanding of the Constitution—even when the outcomes consistently advance conservative policy—as fundamentally different from announcing retirements instantly after voters have chosen a Democratic Senate. In other words, they could regard strategic retirements, which are not unknown among justices, as distinct from politicized judging. Selecting the timing and conditions of retirement can fit their judicial philosophies. And many conservatives might well applaud such retirement decisions as prudent constitutional stewardship.
Yet a retirement declared immediately following the election to enable the outgoing Republican majority to appoint a successor would stand out as unusually conspicuous. Whatever their broader views on strategic retirement, it’s likely that Thomas and Alito would perceive the reputational cost to the Court—and to themselves—as too high under those circumstances.
The irony is that Ginsburg’s cautionary example provides the strongest argument for Thomas and Alito to retire, but also a compelling reason to doubt they will. Justices may be political actors in certain respects, but they are not necessarily the political instruments their allies hope they will be.
