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Rumors Swirl That SCOTUS Justice’s Thomas, Alito Could Be Eying Retirement

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OPINION: This article may contain commentary which reflects the author's opinion.


Media rumors are swirling that U.S. Supreme Court conservative Justices Clarence Thomas, 75, and Samuel Alito, 73, could be eying retirement, raising the stakes even more for the 2024 presidential race.

Democrats are concerned that a Republican president might replace both men with younger conservatives who could rule for a very long time if Biden loses and the GOP wins the Senate majority.

“It’s critical. President Biden, who I feel confident will be reelected, needs to be able to put more judges on the bench, federal judges, including the Supreme Court. It is absolutely critical that the Senate remains in Democratic hands,” said Sen. Debbie Stabenow (D-Mich.), who will retire at the end of next year, The Hill noted.

The Democrat senator referred to last year’s 6-3 Supreme Court decision that overturned the constitutional right to an abortion and raised concerns about other rights protected by the 14th Amendment when she said that if Republicans gained control of the White House and the Senate and replaced Thomas and Alito with younger conservatives, “it would be devastating for anyone who cares about privacy and their own personal freedom.”

Republicans believe there will be a lot on the line in the elections the following year.

“Probably the next president will have a chance to appoint another member of the court,” said Sen. Josh Hawley (R-Mo.), a member of the Senate Judiciary Committee. “I expect that you’d see, over the course between now and the end of the next [presidential] term, probably another retirement or two.”

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Hawley said replacing older conservatives such as Thomas and Alito with younger ones could create an “enduring majority,” but he cautioned that it’s tough to predict how a justice’s opinions might evolve over years on the Supreme Court.

“Republicans have had the majority of Supreme Court appointments for decades now and have not succeeded in getting a stable conservative majority on that court until very recently,” he said. “Does the next election matter for the court? I think it really does. I don’t know how much of a [conservative] majority it is. I don’t know how stable it is.”

These rumors are speculative, but senators are responding to them.

Since Justice Anthony Kennedy retired in 2018, the Supreme Court is now 6-3 in favor of Republican appointees, with Chief Justice John Roberts, 68, emerging as the most likely swing vote.

The oldest Democratic appointee is Justice Sonia Sotomayor, who was nominated by Obama and is 69 years old. President Joe Biden appointed Ketanji Brown Jackson to the court, who is 52 years old, while Justice Elena Kagan, another Obama appointee, is 63.

The three remaining justices, Amy Coney Barrett, 51, Brett Kavanaugh, 58, and Neil Gorsuch, 55, were chosen by the late President Trump.

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Regardless of what happens with Alito and Thomas, the conservative majority that is currently on the court is likely to remain there for some time.

An analysis of the court’s projected composition by academics at three prestigious schools suggested the next time the majority of justices will be appointed by a Democrat is likely to be around 2065.

It found that the Democrats’ failure to confirm Obama-nominee Merrick Garland in 2016, combined with the death in 2016 of liberal Justice Ruth Bader Ginsburg, who was quickly replaced by Trump, “reduced its likely control of the court by about 19 years out of the next 100 and increased the number of years until the party takes control again by 36 years.”

The study caught the attention of judicial reform advocates on both sides of the ideological spectrum who say it further highlights the stakes of next year’s presidential and Senate races.

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“I do think that the 2024 election is important. I do think Alito and Thomas will be getting up there in age, and there’s quite a real possibility that replacements for them could be in order in the next four-year presidential window,” said Brian Fallon, co-founder and executive director of Demand Justice, which seeks to restore “ideological balance and legitimacy” to the courts.

Fallon added: “It’s hugely important to win the upcoming election, and I think the court will be more salient of an issue than ever. It’s important to win the next election because if there is going be an opportunity to replace a Thomas or Alito, you don’t want to miss it by not winning a Senate race here or there and preventing us from filling a seat. But we shouldn’t delude ourselves into thinking that the court’s balance is going to be shifted anytime soon just by winning a few elections.”

If the next president has the chance to appoint a Supreme Court justice, that person could easily serve another 30 years, according to Carrie Campbell Severino, president of JCN, a conservative advocacy group that supports “the Founders’ vision of a nation of limited government.”

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