By John Kruzel
WASHINGTON, Nov 4 (Reuters) – The US midterm election landslide that gives Democrats control of Congress starting in January is fueling questions about the longevity of the Supreme Court’s two eldest justices, Clarence Thomas and Samuel Alito, and the durability of its conservative majority.
As Republicans prepare to cede control of the Senate to Democrats for the next two years or more, some conservative commentators already are expressing concerns about the health prospects of Thomas, 78, and Alito, 76, placing renewed focus on their continued service on the top US judicial body.
The US Constitution assigns the Senate the power to confirm a president’s judicial nominations. With a Senate majority, Democrats can block any nominations that Republican President Donald Trump would make to fill potential Supreme Court vacancies, just as Republicans blocked Democratic President Barack Obama from filling one in 2016.
Thomas has given no public indication of wanting to step down. Alito said last month he would remain for the duration of the current nine-month term, which began in October, even if Democrats were to retake the Senate. Thomas and Alito did not immediately respond to questions from Reuters about whether they are considering retiring.
Thomas and Alito are the court’s two most conservative justices and have reliably backed Trump policies in major rulings during his second term in office. The court’s 6-3 conservative majority, which has steered American law in a sharply rightward direction on issues from abortion to gun rights to presidential powers, includes three justices Trump appointed during his first term as president.
Alito’s comment about remaining through the current term followed speculation that he might quickly retire in the event Democrats captured the Senate in order to ensure that Trump could get a successor confirmed with Republicans still in control.
Until Democrats formally take over Congress on January 3, the current Republican majority retains control during what is called a lame-duck session.
While some conservatives might want Thomas or Alito to retire right away so Trump can nominate a replacement and a Republican-led Senate could quickly provide confirmation, the tight timeline and other legislative priorities could make that difficult even if the justices had any interest in doing so.
‘NAKEDLY POLITICAL’
To some legal analysts, the notion of an imminent Supreme Court departure seemed far-fetched.
Although justices mulling retirement often consider the politics of the president and party control of the Senate in making a decision, “they do not like to broadcast that they do so,” Cornell Law School professor Michael Dorf said.
“Absent an acute health crisis,” Dorf said, “a decision to retire in the next several months would appear, and would in fact be, so nakedly political that I doubt Justice Alito or Thomas would take it.”
Florida Governor Ron DeSantis, a prominent Republican who mounted an unsuccessful presidential campaign in 2024, wrote on social media: “Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero.”
The size of the new Democratic majority in the Senate could make it difficult for Republicans to reclaim the chamber in the 2028 elections, according to some analysts, meaning Republicans may not control both the presidency and Senate for quite some time.
“If a Republican is elected president in 2028, that president will not be able to appoint any justices or judges until Republicans regain the Senate,” said legal analyst Ed Whelan of the Ethics and Public Policy Center, who served as a Justice Department official under Republican President George W. Bush.
“Given the deep hole, that might not happen until 2033,” Whelan said.
Thomas would be 84 and Alito 82 in 2033 when a new Congress is sworn in. That would place them over the average retirement age of around 80 for Supreme Court justices since 2000.
‘ON THEIR TREADMILLS’
Thomas and Alito have no serious health concerns that are publicly known, though each was briefly hospitalized in recent years. Alito was treated for dehydration in March after feeling ill during an event in Philadelphia. Thomas missed arguments in cases in 2022 when he was hospitalized with flu-like symptoms.
Three justices have died in office this century. Conservative Chief Justice William Rehnquist died in 2005 at age 80. Conservative Justice Antonin Scalia died in 2016 at 79. Liberal Justice Ruth Bader Ginsburg died in 2020 at 87.
A Republican-led Senate refused to consider Obama’s nominee to replace Scalia, allowing Trump the following year to fill the vacancy.
The Senate confirmed Trump’s nominee Amy Coney Barrett swiftly in the weeks after Ginsburg’s death to build the court’s current 6-3 conservative edge. Ginsburg’s decision not to retire during Obama’s presidency to clear the way for a like-minded successor was seen by many liberals as a serious miscalculation that led to a dramatically more conservative court.
Some conservative legal commentators addressed the possible political and actuarial implications if Democrats keep the Senate for years.
“The Senate is lost until 2032, so I hope Thomas and Alito got on their treadmills this morning,” Ilya Shapiro, a senior fellow and director of constitutional studies at the Manhattan Institute, wrote in a social media post.
Josh Hammer, a Newsweek podcaster and former clerk to Judge James Ho of the New Orleans-based 5th US Circuit Court of Appeals, wrote in a social media post: “I hope Clarence Thomas and Sam Alito have historically great health insurance plans.”
(Reporting by John Kruzel; Editing by Will Dunham)
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