Alito and Thomas Have Not Announced Retirement as Election Day Opens a Narrow Lame-Duck Window

Election Day is here, and one of the quieter questions on the ballot is whether either of the Supreme Court's two oldest justices decides his seat is safer in a lame-duck Senate than in a Democratic one.

Thomas is 78. Alito is 76. Neither has disclosed a serious health problem, and both have indicated they have no plans to retire this year.

The clock

The window is short. The new Congress is sworn in Jan. 3, 2027, and the Senate has about four and a half work weeks scheduled between Election Day and then.

A retirement announcement would have to come fast, followed by a nomination, hearings and a floor vote. It would be Donald Trump's fourth Supreme Court pick.

The precedent for speed exists. Amy Coney Barrett was confirmed less than a month after her nomination in 2020, eight days before that year's election.

The procedural obstacles are thinner than they used to be. Republicans ended the filibuster for Supreme Court nominees in 2017. In 2020 they ignored the Judiciary Committee's quorum rule, which requires nine members present to transact business, including two from the minority party.

Why the speculation

Prediction markets have moved sharply. They long put Democrats' chance of winning the Senate near 40 percent. Reason now cites a 75 percent chance.

Trump has sunk to 32 percent approval in a recent CNN poll. Republicans have spent money defending states including Texas, Alaska and North Carolina.

Senate Democrats have said what they would do with a majority. Minority Leader Chuck Schumer said on Oct. 5 that taking the Senate was a way to stop Trump from putting "MAGA justices" on the Court. Sen. Richard Blumenthal, a Connecticut Democrat on the Judiciary Committee, said: "It is slim to none that we would support a nominee from this administration."

Sen. Ruben Gallego, an Arizona Democrat, put it more bluntly: "We've got to do exactly what McConnell did to us." That refers to Mitch McConnell's 293-day blockade of Merrick Garland after Antonin Scalia died in February 2016.

That leaves a potential gap for conservatives. If Democrats block any Trump nominee and a Democrat wins the White House in 2028, the next Republican appointment might not come until January 2033. Thomas would be 84 then, Alito 82.

The cautionary tale is Ruth Bader Ginsburg, who did not retire in 2014 at age 81, her last clear chance to leave under a Democratic president and Senate. She died in September 2020 and was replaced by Barrett.

What the justices have said

Alito has addressed it directly. In a recent CBS News interview he said he did not intend to retire imminently, but added: "It's something I think that somebody at my age has to think about every term."

A June NPR report that he had retired was wrong. He remains on the Court.

Thomas has suggested publicly that he will never retire. If he stays, he would become the longest-serving justice in U.S. history in May 2028.

The Reason analysis, which says it is hearing growing support for the idea among some judicial conservatives, also cautions against assuming the justices think like strategists. A justice, the author writes, might weigh continued service, jurisprudential influence, institutional reputation and personal legacy above the fate of his seat. The Ginsburg example, the author notes, cuts both ways.

The opposing argument

Progressive commentators say a lame-duck push would be a mistake. Writing in Ms. Magazine, a lawyer argues there has not been a lame-duck Supreme Court confirmation since the 19th century. She says the American people would see it as "a desperate and unprecedented effort" to manipulate the Court's membership.

She also argues it would fuel Democratic court-reform plans. She cites a Marquette Law School poll finding 89 percent support for a strict ethics code, 79 percent for term limits and 53 percent for adding justices.

The same piece concedes Republicans would likely still have the votes to confirm a successor before the end of 2026. Democrats' power to expand the Court after regaining control is a political prospect, not a settled plan. The poll figures measure public opinion, not legislation.

There is a double standard problem on both sides, and both sides are loudly invoking the other's past conduct. Democrats are promising to block nominees in the name of 2016. Republicans confirmed Barrett in 2020 despite the position they took on Garland four years earlier.

What happens next

The results will be the first test. If Republicans hold the Senate, the pressure for a retirement eases. If Democrats win it, any announcement would have to come in the next several weeks to leave time for confirmation before Jan. 3.

No retirement has been announced, and neither justice has given a date or signaled one. Alito has said only that the question is one he revisits each term.