Justice Samuel Alito Won't Hang Up His Robes Anytime Soon - Original Jurisdiction

Justice Samuel Alito and Mrs. Martha Ann-Alito at The Broadmoor (photo of the photo by David Lat—you can see the reflection of my shirt in the image). If Justice Alito were to retire, he and Mrs. Alito would have more time to travel.

A shorter version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. Some of the new material appears in the footnotes—a form of bonus content for subscribers to Original Jurisdiction—but some of the new material appears in the main text. So you might want to reread this column, or at least skim it, even if you read the earlier version.

On January 31, Justice Samuel A. Alito Jr. celebrated his 20th anniversary as an associate justice of the U.S. Supreme Court.

And on November 3, Americans will go to the polls to vote in the 2026 midterm elections.

This combination of dates has led commentators to ask: Could Justice Alito be preparing to hang up his robes? Might 2026 be the year that he retires from the Court, allowing Donald Trump to appoint a similarly conservative—but significantly younger—successor?1

This latest round of retirement speculation appears to have been kicked off by my former colleague from Above the Law, Elie Mystal. Earlier this month, he published a column in The Nation with this provocative title: “Is Samuel Alito Preparing to Disrobe?”

After noting how the publication date for Justice Alito’s book falls only one day after the start of October Term 2026, Mystal suggested that “Alito doesn’t plan on having a real job the Tuesday his book launches, and instead thinks he’ll be free to run around the country promoting it.” Mystal then pointed out that retiring at the end of the current Term “would give Trump, and the Republicans who still control the Senate, time to appoint and confirm his replacement before the midterm elections” (emphasis in the original).

Other pundits picked up on this prediction. Over at One First, Georgetown law professor Steve Vladeck agreed that “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.” (Mystal and Vladeck, both authors of bestsellingbooks, understand the importance of book promotion.)

On the popular podcast Strict Scrutiny, NYU law professor Melissa Murray noted Justice Alito’s 20th anniversary as a member of the high court, calling it “a very good milestone on which to retire.” Echoing Mystal, she added that “the signs are not looking great for the Republicans in the midterms”—and if Republicans were to lose control of the Senate, that would make it much more difficult to confirm a nominee in the mold of Alito.

In a conversation on Slate with his colleague Dahlia Lithwick, Mark Joseph Stern added additional evidence. He noted that conservative lawyers and writers marked the occasion of Alito’s twentieth judicial anniversary “by publishing laudatoryarticles that had, to me, a distinctly valedictory feel to them”—including “at least one former clerk who may well be in contact with the justice and even have an inkling of his plans.”

While I understand these points, I respectfully dissent. I stand by my earlier prediction that Justice Alito won’t retire this year.

First, he remains energetic and engaged as a justice. He continues to produce solid and smart, if not particularly stylish, opinions—and he’s known around One First Street for being one of the least clerk-dependent justices. As former Alito clerk Ben Aguiñaga, now the solicitor general of Louisiana, wrote in a Fox News tribute to his former boss, “On more than one occasion, email chatter from him would go quiet, and then a flood of perfectly cited draft opinions would come streaming in. He did not need us.”

Justice Alito participates actively in oral argument, and he’s one of the shrewdest questioners on the Court. I argued before him twice, back when he was a judge on the Third Circuit, and advocates have known for decades that they need to think carefully before responding to his questions (despite his unprepossessing demeanor on the bench).

Take last November’s oral argument in the tariffs case, Learning Resources, Inc. v. Trump, concerning whether the president’s emergency power to “regulate … importation” includes the power to impose tariffs. Justice Alito posed this hypothetical: “suppose that there’s a particular national park that’s very crowded, and Congress passes a statute that says the National Park Service may regulate admission to the park. Would you say, well, that does not allow them to impose a fee?” It was one of the most challenging questions that Neal Katyal, counsel to the tariff challengers, had to field.

Second, Justice Alito is still years away from the ages that SCOTUS members have retired at in recent years. Justices Stephen Breyer and Anthony Kennedy served until they were 83 and 82, respectively—and Justices Ruth Bader Ginsburg and John Paul Stevens stayed on the Court until they were 87 and 90, respectively. Even if he served until the end of Trump’s term in January 2029, Justice Alito would still be shy of 80.

And I’m guessing the justice believes he has at least a few more good years left in him, in terms of contributions to the work of the Court. When he wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, that might have been a mic-drop moment for his judicial career; he’ll never write another opinion as momentous as Dobbs, which will be in the first or second paragraph of his obituary. But that was back in 2022, and instead of peacing out, he stuck around—and, it seems to me, he has been invigorated in some ways by the Trump administration, as its foremost defender at One First Street.

Third, the publication of his book might, if anything, suggest that he’s staying put. Book buyers are far more interested in the thoughts of a current justice as opposed to a retired one: the memoirs of Justices Ketanji Brown Jackson and Amy Coney Barrett became bestsellers, while the memoir of retired Justice Kennedy did not. So I could see Justice Alito not stepping down until well after publication of So Ordered.

As for the October 6 publication date, I’m assuming the justice and his publisher simply wanted to take advantage of the spike in media coverage of the Court that the start of a new Term brings. Yes, this will curtail Justice Alito’s ability to go on a book tour or do signings—but that might be a feature, not a bug, from his point of view.

As former clerk Aguiñaga put it, Justice Alito is “famously introverted.” I’ve crossed paths with the justice a few times over the years, and I can confirm the characterization of him as an introvert. Having to meet and make small talk with hundreds or even thousands of strangers, in cities across the country, would be torture for him.

In addition, as the author of Dobbs, Justice Alito would be guaranteed to face protesters at many of his book events. And sadly, in this day and age, going on a national book tour would raise serious security concerns for him as well. I wouldn’t be surprised if, when negotiating his publishing contract, Justice Alito specifically bargained for limitations on his own promotional duties—rather than guaranteed promotion by his publisher.

I should offer the caveat that while I stand by my non-retirement prediction (and have a friendly wager with Elie Mystal about it), I don’t issue it with a high degree of confidence. First, I wouldn’t be surprised if Justice Alito’s wife, Martha-Ann Alito, has been urging him to retire. In a surreptitious recording made by filmmaker Lauren Windsor in the wake of the Flag-gate controversy, Mrs. Alito sounded as if she was looking forward to the day when her husband is “free of this nonsense”—i.e., not subject to the strictures and scrutiny that come with being a sitting justice. Second, I’ve heard from sources that a number of former Alito clerks believe their former boss will retire this year, and the White House Counsel’s Office is expecting—and preparing for—an Alito retirement.2

But I don’t believe these pieces of information, assuming their truth, are dispositive. First, my understanding is that the Alito clerks in question hold their views based just on their gut feelings, not on any inside intel from the justice. Second, it’s entirely understandable that the White House is getting ready for a retirement; given the importance of SCOTUS, a presidential administration should always be prepared to move quickly in the event of a vacancy. So I wouldn’t read much into that.3

At a conference I recently attended, three former Supreme Court clerks who now litigate before the high court were asked about a possible Alito retirement. Two out of three predicted that he’s not going anywhere, at least for now—and I concur. Whether they like it or not, my guess is that the left will still have Alito to kick around some more.4

Who might that successor be? For some possibilities, see my earlier story, 4 Top SCOTUS Contenders In The Second Trump Administration. That post appeared in December 2024, but I believe the four possibilities mentioned therein—Judges Patrick Bumatay (9th Cir.), James Ho (5th Cir.), Andrew Oldham (5th Cir.), and Amul Thapar (6th Cir.)—remain strong candidates. I’d add only that Judge Thapar, who turns 57 in April, could at some point “age out” of consideration (but note that he’s extremely healthy, with a biological age in his 40s).

And I believe some of the other rumors making the rounds about this are incorrect. For example, one rumor is that the Trump administration has already started interviewing shortlisters. As far as I know, this is—as Justice Alito himself might say—“not true, not true.”

Yes, this shoutout to the late Richard Nixon is intentional; I see some similarities between the two men. First, Justice Alito can sometimes be a bit curmudgeonly. Second, the justice has had an occasionally adversarial relationship with the media over the years. Finally, both Justice Alito and President Nixon have ties to my great home state, New Jersey: Alito is a native of the Garden State, where the Alitos still maintain a beach house, and Nixon retired to New Jersey. (In 1981, he and his wife Pat moved to Saddle River, where I grew up—and I used to go trick-or-treating at his house.)