Democratic wave prompts GOP anxiety over Samuel Alito and future of Supreme Court

By John Fritze, CNN

(CNN) — The Democratic rout in Tuesday’s midterm elections sparked an immediate sense of unease on the right about the future of the Supreme Court and a new round of Republican anxiety over decisions by Justices Samuel Alito and Clarence Thomas to stick it out rather than step down.

Multiple sources close to both conservative justices who were granted anonymity to speak freely told CNN on Wednesday they did not anticipate either man leaving the court because of the election results.

But while that may tamp down speculation about an attempt to confirm a justice during a lame duck session of Congress, it will nevertheless leave some legal conservatives on edge for years.

“I hope Clarence Thomas and Sam Alito have historically great health insurance plans,” Josh Hammer, senior counsel to a group that helps support conservative judicial nominations, posted to social media on Wednesday.

As it became clear Democrats would capture the Senate, some Republicans began to openly fret that President Donald Trump’s opportunity to shore up the Supreme Court’s 6-3 conservative majority had slipped from reach. They noted that Alito, 76, and Thomas, 78, may be in their 80s by the time the next GOP president has a chance at a high court nomination with a Republican Senate.

The Supreme Court’s conservative majority has been a defining feature of the Trump era, pushing the law on abortion, guns and religion to the right at breakneck speed. While Trump had a major hand in that dynamic — naming three justices during his first term — it’s possible he will now finish his second term without a single appointment.

“No Supreme Court justice will be confirmed under President Trump’s administration unless something happens in the next six weeks,” Florida Gov. Ron DeSantis, a Republican, said Wednesday. “That’s not just true for these two years, that would likely be true for the four years after that.”

Both Alito and Thomas, the court’s oldest justices, made clear before the court’s current term began in October that they did not intend to retire. Alito also told Bloomberg News that he would stay on even if Democrats captured the Senate.

But that conviction will be tested in coming days as Republicans attempt to pick up the pieces from Democrats’ sweeping victory and others inevitably draw comparisons to Justice Ruth Bader Ginsburg, a liberal whose decision to not retire when Democrats controlled Washington let Trump solidify the court’s conservative tilt by naming Justice Amy Coney Barrett. Ginsburg died in September 2020, weeks before that year’s presidential election.

Alito, who has served on the court since 2006, will be 78 when the next presidential contest is decided in 2028. If a Democrat wins the White House, the New Jersey native would have to wait at least another four years — until age 82 — to have an opportunity to be replaced by a Republican president. Thomas, who has served on the court since 1991, will be 80 in 2028 and 84 when voters pick a president in 2032.

Those ages are not out of line with recent retirements at the Supreme Court, where justices serve for life but often step down in their 80s. Justice Anthony Kennedy, a Reagan nominee who became a swing justice, was 82 when he retired in 2018 during Trump’s first term and was succeeded by Justice Brett Kavanaugh. Liberal Justice Stephen Breyer was 83 when he stepped down and gave President Joe Biden the opportunity to nominate Justice Ketanji Brown Jackson.

Alito and Thomas both appear to be in good health, though the court rarely provides detail about the justices’ care. CNN reported in April that Alito was taken to a hospital after becoming ill at a Federalist Society dinner in Philadelphia. He was evaluated and administered fluids for dehydration at the time. Thomas missed several arguments in 2022 after being hospitalized to receive treatment for what a court spokesperson described at the time as an infection.

Both are entitled to enroll in the same health care plans as other federal employees.

Over the weekend, Thomas marked his 35th anniversary on the Supreme Court and Chief Justice John Roberts departed from the normal flow of oral arguments on Monday to make note of it.

“Three and a half decades later, Justice Thomas is only the second justice in this court’s history to reach this historic milestone,” Roberts said.

Thomas would become the longest-serving justice in 2028.

Both Alito and Thomas consistently vote for conservative outcomes and are beloved figures on the right, and often criticized by the left.

Alito wrote the majority opinion in 2022 overturning Roe v. Wade, completing a decades-long project of the conservative legal movement. Earlier this year, Alito authored a 6-3 opinion that largely gutted the Voting Rights Act for redistricting, a decision that helped the GOP to some extent. Thomas authored a landmark opinion in 2022 expanding Second Amendment rights and is widely viewed as a jurist who refuses to compromise his convictions.

Lame duck?

The consternation over their seats is sure to kick up speculation about whether either justice might step down during the lame duck session of Congress when Republicans will maintain control of the Senate. Following Ginsburg’s death, Trump, aided by then-Senate Majority Leader Mitch McConnell, rushed Barrett through confirmation in just over a month.

But that approach would carry risks. Ed Whelan, a conservative legal commentator who regularly writes on confirmations, noted that any attempt at confirmation before the new Senate is sworn in could backfire given that a number of lame-duck senators such as John Cornyn of Texas and Thom Tillis of North Carolina “aren’t going to be eager to do Trump any favors.”

Asked by Bloomberg News last month if he was a “firm no” to the idea of retiring in a lame duck Congress, Alito responded, “Yeah.”

At the same time, Alito acknowledged in an interview with CBS News in October that he had at least weighed retirement as “something I think that somebody at my age has to think about every term.”

There is no indication as yet that the White House or Senate Republicans are even thinking about a lame duck confirmation fight.

There was also little indication Alito or Thomas were distracted by the political calculations being made on their behalf as they took the bench Wednesday to hear a case involving a death row inmate in Texas. Alito stepped into the court’s ornate chamber with a tight grin and few questions. He spent more time than normal leaning far back in his black leather chair — rocking as the technical argument over habeas corpus unfolded over the course of an hour.

Thomas was especially engaged, asking pointed follow up questions that indicated skepticism that the inmate, Dexter Johnson, should be able to bring a new habeas case to challenge his sentence. Thomas even drew a chuckle from his colleagues with a tongue-and-cheek question about whether the foundational 1803 decision in Marbury v. Madison could be considered “new” under the theory raised by Johnson’s attorney.

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