By John Kruzel
WASHINGTON, April 11 (Reuters) - When Donald Trump https://www.reuters.com/topic/person/donald-trump/ was asked about the prospect of conservative Justices Samuel Alito or Clarence Thomas retiring, the Republican president voiced his support for the U.S. Supreme Court https://www.reuters.com/legal/us-supreme-court/'s two oldest members to remain on the bench.
"I hope they're going to be around a long time," Trump told reporters on February 20 after the duo sided with him in a dissent
to the court's 6-3 ruling striking down https://www.reuters.com/legal/government/us-supreme-court-rejects-trumps-global-tariffs-2026-02-20/ his sweeping global tariffs. "I hope they're going to stay healthy. They're great people."
Alito, 76, and Thomas, 77, have given no public indication that they are planning to leave their lifetime posts on the top U.S. judicial body. They did not respond to questions from Reuters about whether they intend to retire this year.
But discussion among experts about a possible vacancy has increased as the two men draw closer to the average age of retirement for Supreme Court justices since 2000 - about 80 years old - and with the November U.S. congressional elections looming.
Any vacancy would give Trump the opportunity to make a fourth appointment to the court. The last president to appoint four justices was Republican Richard Nixon, who served from 1969 to 1974. Trump made three appointments during his first term in office, giving the court a 6-3 conservative majority that has moved American law dramatically rightward since 2020.
ELECTION CONSIDERATIONS
The U.S. Constitution assigns the Senate the power to confirm a president's judicial nominations. Republicans currently hold a 53-47 Senate majority. If Democrats take control of the chamber in the midterm elections, they would be expected to try to block Trump's nominee to fill any vacancy created by a retirement or the death of a sitting justice.
"The window for Trump to nominate a Supreme Court justice - or any federal judge - with a friendly Republican Senate could be closing by the end of this year," said John Yoo, who served as a Justice Department lawyer under Republican President George W. Bush.
"I think a conservative justice would want to retire during a time when an originalist would follow him or her, and that is most likely with Trump as president and the Senate controlled by Republicans," Yoo said, adding that it is possible Republicans will not control both the White House and Senate at the same time again for years.
Originalism, an interpretative approach holding that constitutional provisions should be read based on their meaning at the time they were written, is closely associated with most of the court's six conservative justices.
If Trump were to replace Alito or Thomas with another conservative, that would not change the court's current ideological balance but would give him a chance to install a younger justice who potentially could serve for decades.
The court has two other septuagenarian members. Conservative Chief Justice John Roberts and liberal Justice Sonia Sotomayor both are 71.
None of the court's liberal justices - Sotomayor, Elena Kagan (65), and Ketanji Brown Jackson (55) - is expected to retire soon. The same can be said for Trump's three appointees: Brett Kavanaugh (61), Neil Gorsuch (58) and Amy Coney Barrett (54).
FOR THOMAS, A MILESTONE AWAITS
Thomas, appointed in 1991 by Republican President George H.W. Bush, is on course next month to become the second-longest-serving justice in Supreme Court history, after Justice William O. Douglas, who served from 1939 to 1975.
Alito, who joined the court in 2006 after being appointed by George W. Bush, reached the milestone of 20 years on the bench in January, as did Roberts https://www.reuters.com/legal/government/20-years-under-john-roberts-dramatic-rightward-turn-us-supreme-court-2025-09-08/ last September.
Five Supreme Court justices have retired this century, while three have died in office. The oldest to step down since 2000 was Justice John Paul Stevens, who retired at age 90 in 2010. The youngest was Justice David Souter, who left the Supreme Court at age 69 in 2009.
Conservative Chief Justice William Rehnquist died at age 80 in 2005 and was replaced by Roberts, a former clerk of his. Conservative Justice Antonin Scalia died at age 79 in 2016, replaced by Gorsuch the following year after Senate Republicans refused to consider Democratic President Barack Obama's nominee to fill the vacancy in the final year of his second term.
Liberal Justice Ruth Bader Ginsburg died at age 87 in 2020. Ginsburg's decision not to retire during Obama's presidency was seen by many liberals as a serious miscalculation. Her death enabled Trump to replace her with a conservative nominee and led to the current conservative supermajority.
"I think it has to loom over everybody's decision," Cornell Law School professor Michael Dorf said of Ginsburg's fateful choice to remain on the bench rather than step down to clear the way for a like-minded successor.
Alito and Thomas have no serious health concerns that are publicly known, though each was briefly hospitalized in recent years. Alito was treated for dehydration on the evening of Friday, March 20, after feeling ill during an event in Philadelphia, but returned to work the following Monday. Thomas missed arguments in cases in 2022 when he was hospitalized with flu-like symptoms.
POLITICAL TIMING
In recent decades, the political timing of a justice's retirement has become an increasingly important consideration, alongside factors such as age and health, according to legal scholars.
The last time a justice retired amid political circumstances that would likely lead to being replaced by a justice with an opposing ideology was in 1991, when Justice Thurgood Marshall retired due to declining health, according to the public policy institute Brennan Center for Justice.
George H.W. Bush replaced the solidly liberal Marshall with the staunchly conservative Thomas, who was narrowly approved by the Senate following a contentious confirmation process.
Current discussion over a possible retirement has focused primarily on Alito.
"I would be utterly shocked and speechless if Justice Thomas were to retire this year," said Yoo, a former Thomas clerk who is now a professor at the University of California, Berkeley School of Law. "He is in great health and is performing at the top of his game."
Court watchers have pointed to several possible clues suggesting that Alito may be preparing for an exit.
Alito all but ensured his legacy by authoring the landmark 2022 decision overruling the 1973 Roe v. Wade ruling that had recognized women's constitutional right to abortion https://www.reuters.com/world/us/us-supreme-court-overturns-abortion-rights-landmark-2022-06-24/.
"Generations from now, if somebody looks up Samuel Alito in Wikipedia or whatever replaces it, that will be the first line," Dorf said. "He's the justice who wrote the opinion overturning the right to abortion."
Alito has also helped steer Supreme Court jurisprudence in a conservative direction on issues ranging from affirmative action to gun rights to presidential power, Dorf said.
Alito's forthcoming book, "So Ordered: An Originalist's View of the Constitution, the Court, and Our Country," is set to go on sale on October 6. That release date, coming a day after the start of the court's next nine-month term, could impede Alito's ability to promote the book as a sitting justice.
"The October publication date is a pretty big tell since one can't exactly go on a book tour during the first argument session of the term," Georgetown University law professor Steve Vladeck, himself a published author, wrote on his Substack, One First.
THE FUTURE FOR ALITO AND THOMAS
Alito and Thomas have faced few public calls from conservatives to step down. By contrast, liberal Justice Stephen Breyer faced withering pressure from the left to retire before the 2022 midterm elections - which he ultimately did - clearing the way for Democratic President Joe Biden to name Jackson, a former clerk of his, to replace him.
Josh Hammer, a former clerk to Judge James Ho of the New Orleans-based 5th U.S. Circuit Court of Appeals, sounded a diplomatic tone when discussing possible Supreme Court retirements last month on his Newsweek podcast "The Josh Hammer Show." Ho is viewed by conservatives as a possible top Supreme Court contender if a vacancy opens up under Trump.
"Far be it for me, again, to advise that Clarence Thomas or Sam Alito resign. They are the two greatest justices on the U.S. Supreme Court, by some order of magnitude," Hammer said.
"I am simply saying that if you are being as risk-averse and cautious as possible, that this is as good a time as any for one of, potentially both of them, to step down," Hammer added. "They're not going to live forever - as much as we would very much love them to both live forever."
Yoo said he expects that calls by conservatives for Alito and Thomas to retire will remain tamped down so long as those justices have Trump's support.
"I think they will not come out in public unless President Trump gives some signal - that has been the story with the MAGA world generally on most issues," Yoo said, referring to Trump's Make America Great Again movement.
(Reporting by John Kruzel; Editing by Will Dunham)
