Supreme Court Justice Samuel Alito confirmed to Fox News on Thursday that he is not retiring and intends to stay on the bench at least through the end of the current term, which wraps up in late June.
The statement comes as Republicans grapple with a bruising midterm election that will hand Democrats firm control of the Senate when the new Congress convenes in January. Florida Gov. Ron DeSantis has predicted that Democratic control could last at least six years, a timeline that would leave President Trump unable to confirm any conservative replacement for Alito or fellow Justice Clarence Thomas for the remainder of his presidency.
Thomas, 78, is the oldest member of the Court. Alito, 76, is next in line.
“Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero. Chance of confirming a worthy successor during a hypothetical GOP admin 2029-2033: probably zero (GOP won’t be able to recapture enough seats in 28),” DeSantis posted to X on Tuesday night.
DeSantis added: “Assuming Republicans lose the seats where prediction markets have the Democrats at 90+% to win, that would produce 55 Democrat Senate seats.”
Conservatives see the door closing
Ed Whelan, a conservative legal expert who clerked for the late Justice Antonin Scalia, warned on X that Trump is effectively locked out of appointing any more federal judges or Supreme Court justices for the rest of his term.
“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,” Whelan wrote. “Given the deep hole, that might not happen until 2033.”
Whelan also dismissed talk that a justice might resign during the upcoming lame-duck session, arguing Republicans would struggle to lock down even 51 votes for a Trump nominee.
“If Sherrod Brown wins Ohio seat, he gets sworn into Senate in early December, so Senate becomes 52R-48D,” Whelan wrote. “Collins and Murkowski would be unlikely to support anyone Trump would nominate. John Cornyn, Thom Tillis, and Bill Cassidy aren’t going to be eager to do Trump any favors. And there are other senators—e.g., John Curtis of Utah—who would be leery of anyone Trump would be eager to push through.”
Alito’s confirmation to Fox News puts an end, for now, to speculation that had built around the future of the Court’s conservative wing following the midterm results.
