Speculation begins over possible Supreme Court retirements
It’s a rite of June every year, but especially so when there is a new presidential administration. Those in the orbit of the U.S. Supreme Court ask, “Will a justice retire at the end of the term?”
When President Donald Trump won the election last year to retake the White House, such talk began early. It immediately zeroed in on the court’s two oldest members: Clarence Thomas, who will turn 77 next week and has served for 33 years; and Samuel Alito, who turned 75 in April and has served for 19 years. Both are widely considered the court’s most conservative members and in tune ideologically with Trump on many issues.
The current betting, though, is that neither is ready to hang it up just yet.
Both Thomas and Alito have hired full complements of law clerks for the next two terms, says David Lat, author of the Original Jurisdiction newsletter on Substack, who comments frequently on the Supreme Court and keeps a keen watch on clerk hiring.
While hiring law clerks for a future term “is not dispositive, it can be revealing and is suggestive that they’re sticking around,” Lat says of Thomas and Alito. “They both seem very engaged with their work at the court. They are very active at oral argument. They show no signs of slowing down, and I actually think that they’ve been invigorated by all of the work of the court these days rather than being overwhelmed or exhausted or frustrated.”
If anything, Thomas and Alito “seem energized by the centrality of the court to American politics and society today,” Lat adds, referencing conservative victories in recent years rolling back abortion rights and the administrative state, and strengthening the First Amendment right to free exercise of religion and the Second Amendment right to bear arms.
Lat reported on Original Jurisdiction last month that he believes “all nine active justices have hired all their clerks for OT 2025 [October Term]—and looking ahead, five out of nine have hired at least one clerk for OT 2026.”
It’s not uncommon for justices to hire law clerks as much as two years out. And as Lat says, hiring for the next term isn’t always a sure sign that a justice won’t retire. Justice Anthony Kennedy was believed to have hired a full slate of clerks for the 2018-19 term before announcing his departure in June 2018. In that situation, the court typically finds a way to place such clerks with the retiring justice’s successor or with other members of the court.
Lat says he is aware of multiple Thomas clerks who have said “that the justice has no current plans of going anywhere.”
“Again, plans can change, but I just don’t see it,” Lat said. “Some people say, ‘Look, they’re in their 70s. Wouldn’t it be great to replace Justice Thomas or Justice Alito with a similarly minded justice who is decades younger?’ I don’t know that they necessarily think in those political terms. They think in terms of, do they still feel they are contributing to the work of the court and whether they are doing a good job.”
Vacancy or not, lists are being drawn up
Both Kennedy and the most recent justice to retire, Stephen Breyer, stepped down during the second year of a new president’s term. (For Kennedy, it was during Trump’s first term; for Breyer, it was in 2022, during the second year of President Joe Biden’s term.) Justice David H. Souter was the last to retire during the first year of a new president’s term when he left in 2009 under President Barack Obama.
Lat says he doubts there will be any retirements at all under Trump’s last term, a view not shared by those compiling unofficial lists of candidates for the president to consider. (Right after the election, conservative legal operative Mike Davis wrote on social media, “Alito is gleefully packing up his chambers.” Longtime Washington legal commentator Ed Whelan predicted Alito will retire this year and Thomas next year.)
Most such lists lead with several conservative federal appeals court judges: James Ho, Andrew Oldham and Stuart Kyle Duncan of the 5th Circuit; Amul Thapar of the 6th Circuit; Neomi Rao of the District of Columbia Circuit; and Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida. All were nominated by Trump during his first term.
Trump hit a nerve late last month by lashing out at the Federalist Society and one of its former leaders, Leonard Leo, who had been an informal adviser to the president on Supreme Court nominations during Trump’s first term.
Josh Blackman, a professor at South Texas College of Law Houston and a frequent commentator about the Supreme Court, has noted that most of the judges on the Supreme Court candidate lists have Federalist Society ties. So even if Trump were to say he was tuning out Leo and the society in the event of an opening, he would still be likely to choose someone with a Federalist Society pedigree.
Still, Blackman says, “I don’t think anyone will retire” this year.
Recent victories may have reinvigorated some justices
While Lat has a lineup of tipsters feeding information about law clerk hires and other matters and Blackman is fond of being in the same room with one or more justices at the 5th Circuit judicial conference or the Supreme Court Historical Society, sociology professor Ross Stolzenberg applies more scientific methods to inform his views on when justices and judges might retire.
Stolzenberg, a professor emeritus at the University of Chicago, has written papers such as “Judges as Party Animals: Retirement Timing by Federal Judges and Party Control of Judicial Appointments” and “Do Not Go Gentle Into That Good Night: The Effect of Retirement on Subsequent Mortality of U.S. Supreme Court Justices, 1801-2006.”
“There are fewer and fewer—vanishingly small—numbers of deaths in office, so judges have gotten the idea that they’re not going to live forever and they like to leave office before they [die], and they do it in a more or less orderly way,” he says, noting that both justices and lower-court federal judges have usually sought to time their retirements to coincide with their own political affiliation and that of the sitting president.
Despite that, Stolzenberg doubts that Thomas and Alito are ready to retire this year.
“These are people who love their jobs, and their jobs seem to invigorate them and give them a real sense of purpose in life,” he says.
The retirement speculation does seem to be limited to those two justices. The court’s three more liberal members—Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—are perceived as preferring to avoid stepping down under Trump. Sotomayor, who turns 71 next week, is the oldest among those three and has been living since childhood with Type 1 diabetes, notably didn’t respond to calls on the left for her to step down late in the Biden administration.
Trump’s three first-term appointees—Justices Neil M. Gorsuch (age 57), Brett M. Kavanaugh (60) and Amy Coney Barrett (53)—are all relatively young and still in their early tenure on the court.
‘Going out feet first’
Chief Justice John Roberts, who turned 70 this year, has had his share of clashes with Trump over the president’s rhetoric against judges who have ruled against him. But he also has written majority opinions that have bolstered presidential power and upheld Trump administration policies as well as some that went against other Trump policies.
At a “fireside chat” on May 7 in Buffalo, New York, U.S. District Judge Lawrence Vilardo asked Roberts about retirement.
“Some of your colleagues have retired,” Vilardo said. “You ever think about that? I mean, you’re too young now, but someday, would you?”
“No,” Roberts said without hesitation. “You know, I’m going out feet first.”
He went on to talk about how a potential health decline might someday alter that intention, and how he had once asked two friends to be prepared to tell him if they believed it was “time to go.”
“Because you don’t always notice that you’re slipping,” Roberts said.
After “a long pause and at once, the two of them said, ‘It’s time to go,’” Roberts said, prompting laughter from the audience. “So I said, ‘All right, never mind.’”
Write a letter to the editor, share a story tip or update, or report an error.
