The Democratic sweep of Tuesday's midterm elections has set off a fresh wave of anxiety on the American right — not about the next Congress, but about the Supreme Court. With Democrats set to take control of the Senate in January, Republicans are openly asking whether Justices Samuel Alito, 76, and Clarence Thomas, 78, have missed their last chance to step down while a Republican Senate could confirm younger conservative successors.
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| File photo: Justice Samuel Alito at the Supreme Court. Alito, 76, has said he intends to stay through the current term. |
President Donald Trump named three justices during his first term and reshaped American law on abortion, guns, religion and voting rights. After Tuesday's results, it is possible he will finish his second term without a single Supreme Court appointment — and the two justices whose seats matter most have both made clear, for now at least, that they are not going anywhere.
A Sweep That Changed the Math
Democrats trounced incumbent Republicans in Tuesday's midterms. As of 7 p.m. ET on Wednesday, Democrats had flipped seven Senate seats and 32 seats in the House, according to USA Today, securing control of both chambers.
The Senate result is what matters for the Supreme Court: it confirms the president's judicial nominees, and a Democratic majority will have the power to reject any Trump nominee — including a replacement for a conservative justice. As it became clear on Tuesday night that Democrats would capture the Senate, some Republicans began to openly fret that Trump's opportunity to shore up the court's 6-3 conservative majority had slipped from reach. Alito, 76, and Thomas, 78, may be in their 80s by the time the next Republican president has a chance at a high court nomination with a Republican Senate behind him.
CNN noted that Alito, who has served on the court since 2006, will be 78 when the next presidential contest is decided in 2028 — and 82 if a Democrat wins the White House and he must wait another four years for a Republican president. Thomas, who has served on the court since 1991, will be 80 in 2028 and 84 in 2032.
Florida Governor Ron DeSantis, a Republican, put the point bluntly on Wednesday. "No Supreme Court justice will be confirmed under President Trump's administration unless something happens in the next six weeks," DeSantis said.
"I Intend to Stick Around"
Multiple sources close to both conservative justices told CNN on Wednesday that they did not anticipate either man leaving the court because of the election results. Both men, the court's oldest justices, said before the current term began in October that they did not intend to retire, and Alito told Bloomberg News he would stay on even if Democrats captured the Senate. "I intend to stick around through this term," Alito told Bloomberg as the court began a new term last month, adding that he had made that decision many months ago. 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."
Alito acknowledged in a CBS News interview in October that he had weighed retirement as "something I think that somebody at my age has to think about every term." Thomas, for his part, has not spoken publicly about how long he intends to remain on the court, and has suggested in the past that he will never retire. Over the weekend, he marked his 35th anniversary on the Supreme Court — only the second justice in history to reach the milestone, as Chief Justice John Roberts noted on Monday. Thomas would become the longest-serving justice in 2028.
File photo: Justice Clarence Thomas, 78, who marked 35 years on the Supreme Court this week. Thomas has not spoken publicly about how long he intends to remain on the bench.
The Lame-Duck Question
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 still maintain control of the Senate until the new Congress is sworn in in January. After Justice Ruth Bader Ginsburg died in September 2020, Trump rushed Justice Amy Coney Barrett through confirmation in just over a month — a precedent some conservatives are now openly invoking.
But that approach would carry serious risks, and the odds of it happening are widely seen as low. Steve Vladeck, a professor at Georgetown University Law Center and a critic of the 6-3 conservative court, put the odds of Thomas or Alito quickly stepping down at "close to nil."
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." Two other Republican senators — Alaska's Lisa Murkowski and Maine's Susan Collins, who lost her reelection bid — are also unlikely to support a Trump pick, Whelan wrote. "Anyone contemplating the decision (to retire) would recognize that there is a very high risk that the Senate would not be able to confirm a nominee in the lame duck," Whelan wrote.
Nick Xenakis, a former top Democratic aide on the Senate Judiciary Committee, said it is theoretically possible for the Senate to confirm a new justice before the end of the year, but "there's a lot of unknowns about whether that's possible right now." There is no indication as yet that the White House or Senate Republicans are even thinking about a lame duck confirmation fight, CNN reported.
The Ginsburg Parallel
For many on the right, the situation carries an uncomfortable echo: Ginsburg, a liberal, chose not to retire when Democrats controlled Washington, and her death in September 2020, weeks before that year's presidential election, let Trump solidify the court's conservative tilt by naming Barrett.
The court's conservative majority has pushed the law on abortion, guns and religion to the right at what CNN described as breakneck speed. Alito wrote the 2022 opinion overturning Roe v. Wade and, earlier this year, a 6-3 opinion largely gutting the Voting Rights Act for redistricting; Thomas authored the landmark 2022 opinion expanding Second Amendment rights.
Both justices were back at work on Wednesday, hearing a case involving a Texas death row inmate.
What This Means
The midterm results have not changed who sits on the Supreme Court today, but they have changed what the court could look like for years to come. A 6-3 conservative majority that once looked durable now depends on the health and stamina of two men in their late seventies — and on the outcome of elections in 2028 and beyond.
Any openings during the remainder of Trump's term will remind Democrats of 2016, when Senate Republicans refused to consider President Barack Obama's nomination of then-Judge Merrick Garland after Justice Antonin Scalia died. "I imagine there's going to be opposition in the Senate Democratic caucus to confirming anyone in the next two years," Xenakis said.
Senator Sheldon Whitehouse, the Rhode Island Democrat who is expected to take over the Senate Judiciary Committee, has not said whether he would consider a Trump nominee if there is an opening. But in a statement after the election, Whitehouse said voters sent a message that "they don't want a Supreme Court, captured by the billionaire class, selling out our democracy." Vladeck warned that a rushed lame-duck retirement would be "institutionally catastrophic" and would further motivate Democrats to change the makeup of the court.
The Supreme Court building in Washington. The court's 6-3 conservative majority now depends on the health and stamina of its two oldest justices.
What Happens Next
The lame-duck window is short — roughly six weeks — and the practical obstacles to a rushed confirmation are formidable, from departing senators' reluctance to the logistics of vetting a nominee in that time.
Congress returns from a month-long recess on November 9. If neither justice steps down, the court's composition is effectively frozen until at least 2028, when the next presidential election — and the next Senate — will decide whether a Republican president ever gets another chance to name a justice.
The justices themselves have given no sign of being moved. Alito has said his decision was made months ago; Thomas has never suggested he plans to leave. For now, the conservative majority holds at 6-3 — but the midterm results have made one thing clear: the court's future now depends less on the White House than on the calendar, and on two justices who have, so far, refused to let it be rushed.
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