There is a certain kind of retirement planning where the client cannot be fired, has the job for life, and the only relevant variables are (1) the client’s health and (2) who controls the U.S. Senate in November. Financial advisors are not typically trained for this. Supreme Court justices do it themselves, in public, while insisting they are not doing it at all.
Samuel Alito, 76, the court’s second-oldest justice, has had a go at it. He “thought about” retiring after the court’s last term, he told CBS News, but decided against it, believing he could still make “a valuable contribution.” In a separate interview with “Fox News Sunday,” he addressed the small industry of people tracking his breakfasts for signs of farewell: “I’ve been bemused by the retirement speculation; it’s not too pleasant to look up and see the vultures circling.” And: “I don’t have a calculation for it ... I think it would be foolhardy to make a calculation [that] I’m going to serve for a certain number of additional years.”
Which is a reasonable position for a person, and a slightly funny one for an institution. Because of course there is a calculation, and everyone in Washington can do it. Alito is one of the court’s most conservative justices, Republicans currently hold the White House and the Senate, and the midterm election is 30 days away. If Democrats win the Senate, they would effectively have veto power over any Supreme Court nominee President Donald Trump sends up. A retirement announced while Republicans can confirm a successor is worth a 6-3 conservative majority continuing; a retirement — or an act of God — afterward is worth rather less, from the perspective of people who like the current majority.
Nobody pretends otherwise because the precedent is too fresh. When Justice Antonin Scalia died in 2016, then-Senate Majority Leader Mitch McConnell refused to take up President Barack Obama’s nomination of Merrick Garland until after the presidential election, and the seat eventually went to Neil Gorsuch. When Justice Ruth Bader Ginsburg died in 2020, McConnell moved quickly to confirm Trump’s nominee, Amy Coney Barrett, just over a week before the election. The rule, as demonstrated, is that the Senate confirms nominees of its own party’s president and does not confirm the other party’s, and the calendar is a prop. Everything since has been an exercise in judges, or their admirers, doing the arithmetic Alito says it would be foolhardy to do.
The arithmetic itself, according to CNBC: Democrats hold an edge in national House polling, and the CBS News Battleground Tracker model estimates a narrow Democratic majority after the midterms. The Senate, once considered safe, is now in play, with Republicans in unexpectedly tight races amid voter anger over prices and the economy. Democrats need to net at least four seats while defending all their current ones to take the majority.
Meanwhile Clarence Thomas, 78 — the court’s oldest justice, and also part of its conservative bloc — remains on retirement watch too, quietly, the way the second engine on a plane is quiet until you start thinking about the first one.
So Alito stays, which is his right, by design. Lifetime tenure exists precisely so that justices do not have to care about midterm polling, and there is a straight-faced argument that the least political outcome is the one where a 76-year-old man simply keeps showing up to work because he believes he is contributing. The court’s term opened Monday with climate, guns and immigration cases, and Alito has already had to recuse himself from the biggest climate case over his stock portfolio, which is its own small lesson in the perils of planning around this particular justice.
The vultures, for their part, are not really circling Alito. They are circling the Senate map. He just happens to be standing under it.