Alito may suffer from Ruth Bader Ginsburg syndrome

The arrogance of power knows no partisan or ideological boundaries.

Liberal icon Justice Ruth Bader Ginsburg often likened herself to the great Justice Louis D. Brandeis. Brandeis served 22 years on the Supreme Court, retiring at age 82.

In the closing years of the Obama administration, prior to the 2016 election, Ginsburg might have resigned at age 82, paving the way for the appointment of another liberal justice who shared her judicial philosophy. Instead, although diagnosed with cancer, she chose to soldier on and died in office in September 2020 at age 87 after 27 years of service.

President Trump wasted no time appointing as her successor conservative Justice Amy Coney Barrett, creating the present court’s 6-3 conservative supermajority.

Ginsburg had said in 2016 that she “can’t imagine what the country would be — with Donald Trump as our president,” calling Trump a “faker.” She later said she regretted her remarks.

Justice Samuel Alito, now 76 , may well suffer from Ginsburg syndrome. The new Senate, with its decisive Democratic majority, is unlikely to confirm a hard-right justice. But the new Senate will not be seated until January. If Alito wants to preserve his legacy for a generation, he needs to retire immediately while the MAGA Republicans still hold the majority.

But according to the New York Times, Alito has told friends he does not plan to step down before the end of the court’s term in June, even though Democrats will assume Senate control in January. Alito shared his plans with friends after the election results were clear this week.

As recently as last month, the conservative Alito 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 , last month.

Alito has been an obdurate thinker inflexibly voting to rubber-stamp Trump’s outsized bid for executive power and his policies that bump up against constitutional norms. If Alito fails to retire this month, Republicans will have probably missed their window of opportunity for Trump to name a fourth justice to the Supreme Court in the final two years of his presidency.

But the Democratic landslide last week generated speculation that Alito or 78-year-old Justice Clarence Thomas — the court’s two oldest justices — could quickly announce their retirements and give Trump a shot at ramming through successors during the Senate’s lame-duck session.

Thomas has ruled out retiring, suggesting he might serve for decades more . With 35 years on the bench, if he were to stay through May 2028, he would already set the record as the longest-serving justice in Supreme Court history.

Despite the speculation, legal experts largely agreed after Election Day that fast-track retirements would not guarantee confirmation of a successor. The Republicans hold a majority in the present Senate of 53-47 . But a nominee would face the possible defection of departing Republican senators such as John Cornyn (R-Texas) and Bill Cassidy (R-La.), who were defeated in primaries by Trump-backed challengers.

In addition, there is Sen. Susan Collins (R-Maine), a moderate who lost on Tuesday. She claims Justice Brett Kavanaugh misled her on overruling Roe v. Wade during his stormy confirmation hearing. And there is the maverick Sen. Lisa Murkowski (R-Alaska), who may desert the fold. The group may have had little appetite to help Trump steamroll a nominee of his choice.

After Trump won reelection in 2024, the conservative legal analyst Ed Whelan said he expected Alito to announce his retirement the next spring and predicted Thomas would step down in 2026. The moves, he had believed, would allow Trump to replace the justices with younger jurists who might secure the court’s conservative supermajority for a generation. But no one likes to give up power voluntarily, irrespective of ideology.

But after Tuesday’s election, Whelan said the two conservative justices may not be able to retire before 2033 if they want to be succeeded by nominees with a similar judicial philosophy.

“No justice is going to announce in the next few days that he will be stepping down,” Whelan wrote , adding, “Justices don’t make snap decisions about retiring.”

Conservatives agonize that both men may follow Ginsburg’s unfortunate example. If a Democrat were elected to succeed Trump as president in 2028, both Alito and Thomas would be in their 80s before a Republican could regain the White House and be in position to nominate a successor.

In a series of interviews published in October, 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.”

Meanwhile, a Democratic Congress will have other implications for 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.

Thomas, for example, could face renewed questions surrounding unreported gifts he accepted from his friend Harlan Crow, a Texas billionaire and Republican donor.

James D. Zirin is a former federal prosecutor in the Southern District of New York and a published legal analyst.