Justice Samuel A. Alito Jr. has told people close to him that he does not intend to retire immediately from the Supreme Court, despite Democrats’ commanding win in Senate contests on Tuesday, which means Republicans will hold the chamber for only a short time longer.
As a result, Republicans may have missed the window for President Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency.
Justice Alito shared his plans with friends after the election results were clear this week, according to two people close to the justice who spoke on the condition of anonymity.
As recently as last month, Justice Alito, a forceful conservative and reliable vote in favor of Mr. Trump’s policies, had rejected the idea that he would step down if Democrats took control of the Senate.
“I intend to stick around through this term,” he told Bloomberg News, in an interview published in early October.
But the state of the electoral map after Tuesday’s election generated speculation that he or Justice Clarence Thomas — the court’s two oldest justices — could quickly announce their retirements and give the president a brief window to push through a successor during the Senate’s lame-duck session.
Over the years, Justice Thomas has ruled out retiring, suggesting he would serve for decades more. With 35 years on the bench, if Justice Thomas were to stay through May 2028, he would set the record as the longest-serving justice in Supreme Court history.
Justice Thomas, who is 78, and Justice Alito, who is 76, did not respond to requests for comment about their plans.
Despite the public conversation, legal experts were largely agreed on Wednesday that a speedy retirement would be a potentially dicey and problematic proposition that was not guaranteed to secure a seat.
A nominee would have faced the newfound independence of departing Republican senators such as John Cornyn of Texas and Bill Cassidy of Louisiana, who were defeated in primaries by Trump-backed challengers, in addition to Susan Collins of Maine, a moderate who lost on Tuesday. The group may have had little appetite to help Mr. Trump ram through a nominee of his choice.
After Mr. Trump won re-election in 2024, the conservative legal analyst Ed Whelan said that he expected Justice Alito to announce his retirement the next spring and predicted that Justice Thomas would step down in 2026. The moves, he had believed, would allow Mr. Trump to replace the justices with younger jurists who might secure the court’s conservative supermajority for a generation.
Of course, an unexpected vacancy due to health concerns, for instance, could arise at any time during the remainder of Mr. Trump’s tenure. But after Tuesday’s election, in which the scale of the Democrats’ win in Congress was larger than expected, Mr. Whelan said the two conservative justices now may not be able to retire before 2033 if they want to be succeeded by a nominee with a similar judicial philosophy.
“No justice is going to announce in the next few days that he will be stepping down,” Mr. Whelan wrote, adding, “Justices don’t make snap decisions about retiring.”
Robert Luther III, a professor at Antonin Scalia Law School who helped choose Mr. Trump’s judicial nominees during his first term, agreed.
“I don’t anticipate any retirements before January, and frankly, I wouldn’t advise it,” he said.
Both justices were on the bench when Justice Ruth Bader Ginsburg decided not to retire before the 2016 election, a decision many court observers consider a cautionary tale. Instead of allowing President Barack Obama to pick her successor, Justice Ginsburg died while in office in 2020, creating an opening for Mr. Trump to replace the liberal icon with a conservative, Justice Amy Coney Barrett.
But now, conservatives fret that both men may be in danger of following Justice Ginsburg’s example. If a Democrat were elected to succeed Mr. Trump as president in 2028, both Justices Alito and Thomas would be in their 80s before a Republican could regain the White House and be in position to nominate a successor. Forecasts for when the G.O.P. might regain control of the Senate are even cloudier.
At the end of the Supreme Court’s last term in June, speculation had intensified about Justice Alito’s future and whether Mr. Trump would have an opening to continue to remake a Supreme Court that already includes three of his first-term nominees.
Because of Justice Thomas’s previous statements, attention centered on Justice Alito. It reached a fever pitch on the last day of the term when NPR erroneously reported, and then retracted, his retirement.
In a series of interviews published in October, Justice Alito acknowledged that he had “thought about” retiring at the end of the term, but said he had ruled it out, thinking he could still make a “valuable contribution,” as he told CBS News.
Meanwhile, a newly empowered Democratic Congress will have other implications for the Supreme Court beyond vacancies and nominations. Democrats unhappy with rulings from the conservative bench have repeatedly called for changing the structure of the court. Recent polls show bipartisan support for enacting an enforcement mechanism for the ethics code the justices adopted in 2023, and for eliminating life tenure for justices.
Gabe Roth of Fix the Court, which advocates judicial accountability, predicted on Wednesday that House and Senate committees overseeing the courts would also revive judicial ethics investigations that were largely paused two years ago.
Justice Thomas, for one, could face renewed questions surrounding gifts he accepted, but initially did not report, from his friend Harlan Crow, a Texas billionaire and Republican donor. The justice has said he was not required to report such gifts at the time.
Abbie VanSickle and Michael Gold contributed reporting.
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