Alito Tells Fox News He Is Not Retiring, Committed Through Term Ending in Late June

Since Election Day opened Nov. 3 with neither Justice Samuel Alito nor Justice Clarence Thomas having announced retirement plans, Democrats have won the Senate, and Alito has now put his intentions on the record.

Alito told Fox News today, Nov. 5, that he has no plans to retire and is committed through at least the current term, which is set to end in late June. He is 76. Thomas is 78.

The statement follows reporting from earlier in the week. Two people close to Alito told The New York Times on Wednesday that he does not intend to retire immediately, despite the Democratic win. CNN reported that multiple anonymous sources close to both justices said they do not expect either man to leave because of the election results.

What Alito has said before

This is a consistent line. Alito told Bloomberg News last month, "I intend to stick around through this term." In August he told The Wall Street Journal, "Obviously I'm here for another term."

In October he told CBS News chief legal correspondent Jan Crawford that he had weighed stepping down this year and decided against it. "I thought that I could still make a valuable contribution," he said. "It's too hard to predict what the political situation will be, and what any president might do with respect to a replacement."

He also left the door open. "It's something I think that somebody at my age has to think about every term," Alito said. Asked whether he would revisit the question each year, he answered, "Yeah, I think I have to."

On the outside pressure, he told the Journal that the nudges are "not pleasant," calling them "a reminder of mortality. It's like, what are those vultures doing up there?"

The math in the Senate

The Senate currently stands at 53-47 Republican. The new Congress is sworn in Jan. 3, 2027. The exact size of the Democratic majority is still being tallied. The Daily Wire reported that races in Mississippi and Alaska were too close to call, and Republicans lost at least seven seats.

Florida Gov. Ron DeSantis, a Republican, said Wednesday: "No Supreme Court justice will be confirmed under President Trump's administration unless something happens in the next six weeks. That's not just true for these two years, that would likely be true for the four years after that." In a Tuesday night post on X he put the odds of confirming a worthy successor to Thomas or Alito during Trump's term at "Zero," and wrote that Republicans would be unlikely to recapture enough seats in 2028.

Ed Whelan, a conservative legal commentator who clerked for the late Justice Antonin Scalia, wrote that a Republican elected president in 2028 could not appoint justices or judges until the GOP regains the Senate, possibly not until 2033. He also called a lame-duck resignation highly unlikely, writing that Republicans would struggle to find 51 votes.

Whelan wrote that if Sherrod Brown wins the Ohio seat, Brown would be sworn in early December and the Senate would become 52-48. He listed Susan Collins and Lisa Murkowski as unlikely to back any Trump nominee. John Cornyn, Thom Tillis and Bill Cassidy, he wrote, "aren't going to be eager to do Trump any favors." The Times noted that Cornyn and Cassidy lost renomination bids to Trump-endorsed challengers. Collins lost Tuesday.

The case that a justice should have left

Some on the right want the justices to reconsider. Josh Hammer, senior counsel to a group that supports conservative judicial nominations, posted Wednesday: "I hope Clarence Thomas and Sam Alito have historically great health insurance plans."

The argument has a name attached to it. Before the election, a Reason analysis laid out the case for a lame-duck retirement. It pointed to Ruth Bader Ginsburg, who did not retire in 2014 at age 81 while Democrats held the White House and Senate. In January 2033, it noted, Thomas would be 84 and Alito 82. That analysis also acknowledged the counterweights: justices weigh continued service, jurisprudential influence and legacy, and do not see themselves simply as agents of the coalition that put them there.

That is close to what Alito himself has said. He has described his reasoning as a judgment about being useful on the bench, and about how unpredictable the politics are.

Politics around the loss

Vice President JD Vance said Wednesday that heavy losses could keep Republicans out of Senate control until at least 2032. "The reason we lost is the war. The president himself said so last night," Vance said. He challenged anyone who thinks losing the Senate for six years was worth it to say so openly.

Trump now faces the prospect of finishing his second term without a Supreme Court appointment. He named three justices in his first term. The court's conservative majority stands at 6-3.

What comes next

Neither justice has announced a departure date, and Alito's stated horizon is the end of the term in late June 2027. Any lame-duck move would have to be nominated and confirmed before the new Congress convenes on Jan. 3. Barring a surprise in the next two months, the question moves to next summer, when Alito has said he will weigh it again.