Trump’s election sparks retirement talk for Thomas, Alito, Sotomayor

President-elect Trump’s White House victory has created tussles among conservatives and liberals alike over whether the Supreme Court’s oldest justices should retire.

Trump’s election has raised public anticipation that two of the court’s leading conservatives, Justice Clarence Thomas, 76, and Justice Samuel Alito, 74, may step down.

Although the incoming Republican-controlled Senate could glide their Trump-nominated replacements to confirmation, the speculation has drawn admonishment from a key figure in the conservative legal movement, who called the talk “crass.”

The election has meanwhile renewed fretting among some Democrats that the court could be headed to a 7-2 conservative majority as President Biden’s term nears a close with Justice Sonia Sotomayor, 70, the court’s most senior liberal, showing no sign of stepping aside.

During his first term, Trump remade the court by appointing three justices who have delivered considerable conservative victories, including overturning constitutional abortion protections, contracting the power of federal agencies and expanding gun rights.

In his second term, Trump could become the first president since Dwight Eisenhower to appoint a majority of sitting Supreme Court justices, if Thomas and Alito do in fact retire.

“We're going to see again younger originalist judges who really respect the structural constraints of our Constitution,” said Kimberly Hermann, executive director of the conservative Southeastern Legal Foundation.

Ed Whelan, a conservative legal commentator who clerked at the Supreme Court, wrote on his Substack newsletter last week that he anticipates Trump can reach the rare feat.

“I expect Alito to announce in the spring of 2025 that he will retire from the Court. I think it very likely that Thomas will do the same in the spring of 2026,” Whelan wrote.

Mike Davis, a fierce public defender of Trump who has denied rumors that he may become Trump’s attorney general, wrote on social platform X, “Prediction: Justice Sam Alito is gleefully packing up his chambers.”

But not all conservatives see it that way.

“No one other than Justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed, and, frankly, just crass,” said Leonard Leo, a judicial activist who played a central role in the court’s rightward shift and aided Trump in choosing his three nominees, in a rare public statement.

“Justices Thomas and Alito have given their lives to our country and our Constitution, and should be treated with more dignity and respect than they are getting from some pundits,” Leo said.

Nominated by former President George H. W. Bush, Thomas is the longest-serving current justice. His 33-year tenure recently cracked the top 10 out of the 116 people who have ever served on the court.

Alito arrived on the court more recently in 2006, nominated by former President George W. Bush.

There’s no guarantee that the two conservatives — or Sotomayor, whom President Obama nominated to the court in 2009 — will retire during Trump’s time in the White House. They all still will be younger at the end of Trump’s term than the three most recent justices who remained on the bench into their 80s.

Stephen Breyer retired at 83, Ruth Bader Ginsburg served until her death at 87 and Anthony Kennedy retired at 82.

“It's hard to tell when any Supreme Court Justice is going to retire,” said Hermann.

Democrats are still reeling from Ginsburg’s decision to not retire during former President Obama’s term despite facing health issues. Ginsburg passed away from pancreatic cancer weeks before the 2020 election, which enabled Trump to create a 6-3 conservative majority by replacing the liberal icon with Amy Coney Barrett, who remains the youngest sitting justice at 52.

When Breyer announced his retirement a year into Biden’s term, when Democrats also controlled the Senate, the liberal justice indicated the political environment was part of his calculus.

“If I stay there another year, another two years — you know, I’m not Methuselah — even another three years. Will it be possible for a president to nominate and have confirmed my replacement? That’s the kind of thing that’s in my mind,” Breyer said in an interview with CNN after leaving the bench.

“There have been delays, you know, when the parties split between control of the Senate and control of the presidency and sometimes long times pass,” Breyer continued. “And I would prefer that my own retirement, my own membership on the court, not get involved in what I call those purely political issues.”

Before this election, Sotomayor faced a scattering of public calls to retire from people like columnist Josh Barro and Mehdi Hasan, a former MSNBC host who now runs startup Zeteo.

But elected Democrats brushed aside the pressure from left-leaning commentators and stood behind Sotomayor’s decision to stay on the bench.

Sotomayor, the third-oldest sitting justice, has long been public about living with type 1 diabetes, and concerns about her health heightened after a watchdog through a Freedom of Information Act request unearthed documents indicating the justice has traveled with a medic in recent years.

Her health also entered the public fray when she denied reports about conflicts with Justice Neil Gorsuch, Trump’s first appointee who sits next to Sotomayor on the bench, over wearing masks when they returned to in-person operations. Sotomayor continued to wear a mask at oral arguments well after her fellow justices, though she stopped doing so months ago.

There is no indication the liberal jurist plans to retire, or even whether a replacement at this point would be confirmed before the end of Biden’s term. The Wall Street Journal and CNN, citing people close to the justice, in recent days reported Sotomayor plans to remain in her post.

Thomas, Alito and Sotomayor did not return a request for comment on their plans sent to a court spokesperson.

Sen. Bernie Sanders (I-Vt.) said on NBC’s “Meet the Press” that he had heard “a little bit” of talk from his colleagues about the prospect of Sotomayor retiring in the waning days of the Biden administration but dismissed the idea.

“I don't think that's the sensible approach,” Sanders said.