WASHINGTON — The most consequential retirement decision in American politics this week was a decision not to retire. Justice Samuel A. Alito Jr. has told people close to him that he does not intend to retire immediately from the U.S. Supreme Court, despite Democrats' commanding win in Tuesday's midterm Senate contests, the New York Times reported on Thursday, November 5. Bloomberg Law, in a separate report, said Alito indicated in a private conversation on Wednesday that Tuesday's sweeping Democratic win had not changed the plan he announced in September: to remain on the Court through the current term. If that holds, there will be no Supreme Court vacancy for President Donald Trump to fill in the short lame-duck window before Republicans hand the Senate to the Democrats in January.
The reporting matters because of the calendar. Republicans hold the Senate only until the new Congress convenes on January 3, 2027. A retirement announced in the next few weeks would have let Trump nominate a younger conservative successor — potentially his fourth or even a fifth appointment to the nine-member Court — and let the outgoing Republican majority try to confirm that nominee before January. The Times reported that, with Alito staying, Republicans may have missed that window for the final two years of Trump's presidency, when a Democratic Senate will control whether any Trump nominee gets a vote at all.
What the New York Times reported
According to the Times, Alito shared his plans with friends after the election results were clear this week. The paper based its account on two people close to the justice who spoke on condition of anonymity. Its conclusion was blunt: as a result of Alito's decision, Republicans may have missed the window for Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency. The Times report did not describe Alito giving any date beyond the immediate period, and it did not report any equivalent statement from Justice Clarence Thomas, the Court's longest-serving current member and, at 78, its oldest.
What Bloomberg reported — and what Alito said in September
Bloomberg Law's account adds the justice's own earlier words. Alito, it reported, indicated that his stance had not changed despite the Democratic takeover in Tuesday's election, according to a person who asked not to be identified discussing a private conversation with the justice on Wednesday. That is the same position Alito took publicly in a Bloomberg News interview in late September, well before the midterms, when he said he had decided to remain no matter how the election turned out. 'I intend to stick around through this term,' he said then, referring to the nine-month court session that runs through June, adding: 'I made that decision many months ago.' In other words, on the reporting available, the election did not produce the decision — it simply made a decision taken months earlier politically decisive.
Why the speculation was so intense
Retirement timing is the one lever a justice personally controls, and both parties understand its value. A conservative justice stepping down under a Republican president and a Republican Senate guarantees a like-minded, usually younger replacement who can serve for decades; the same justice stepping down under a Democratic Senate risks the seat flipping or staying vacant. That is why speculation focused on the Court's two oldest conservatives, Alito, 76, and Thomas, 78, in the weeks around the midterms — and why betting followed the rumours: Bloomberg Law reported in October that bettors on the Kalshi and Polymarket prediction markets had wagered nearly $6 million since February guessing when Alito would step down, with interest spiking again around the publication of his book.
Three things, in order, before January 3, 2027: a sitting justice would have to announce a retirement; President Trump would have to nominate a successor; and the outgoing Republican Senate majority would have to hold hearings and confirm that nominee in the few session weeks left. The first step has now reportedly been ruled out by Alito, and there is no current vacancy on the Court and no announced departure by any justice.
The Thomas question — and the longer conservative worry
There is no equivalent report about Thomas, and the legal commentator Jonathan Adler, writing in Reason's Volokh Conspiracy, argued there is little reason to think he is going anywhere: Thomas is on the verge of becoming the longest-serving justice in the nation's history and has previously said he intends to spend at least 43 years on the Court, which on Adler's account would leave him several more years to go. The Washington Post, in reporting summarized on November 5, found the deeper anxiety among conservatives is longer-term: legal and political experts told the Post that Republicans may not have a realistic shot at winning back enough Senate seats to confirm a conservative justice until 2033, by which time both Alito and Thomas would be well into their eighties. Neither Alito nor Thomas responded to the Post's request for comment.
What the lame-duck Senate can still do: lower courts
A Supreme Court fight may be off the table, but the lame-duck session is not empty. Adler noted there are lower-court nominations still to consider, including nominees for the U.S. Courts of Appeals for the Fifth, Eighth and Tenth Circuits — the regional appeals courts whose rulings shape federal law for millions of people and whose judges, like Supreme Court justices, serve for life. Michael Fragoso, writing in the Wall Street Journal and cited by Adler, argued the lame duck may be Republicans' last opportunity for some time to confirm conservative judges, urging senators to confirm the originalist nominees now pending. Democrats, who will run the Senate Judiciary Committee from January, have the opposite incentive: every seat filled now is a seat they cannot fill later.
What happens next
The Supreme Court's current term runs through June, and on Alito's stated plan he will sit for all of it — hearing and deciding the term's cases with the Court's existing membership unchanged. The Senate's remaining weeks will show whether Republicans use their expiring majority to move the pending appeals-court nominees Adler and Fragoso pointed to. And the retirement question itself is postponed, not settled forever: Alito has committed, on this reporting, to this term, not to any date beyond it. If either Alito or Thomas were to leave after January 3, the nomination would land in a Democratic Senate, which is precisely the scenario this week's reports say will not be avoided by a lame-duck exit.