Supreme Court Justice Samuel Alito confirmed to Fox News on Thursday that he has no plans to retire and intends to remain on the bench through at least the current term, which is scheduled to conclude in late June.
Alito's statement arrives as speculation builds about the future of the court following a poor Republican performance in the midterm elections. When the new congressional term opens in January, Democrats will hold firm control of the Senate, and some forecasts, including one from Florida Gov. Ron DeSantis, predict that dynamic will hold for at least six years.
Such an outcome would make it extremely difficult, if not impossible, for President Donald Trump to fill any potential vacancy with a conservative after this year. Alito, at 76, is the court's second-oldest member, behind Justice Clarence Thomas, who is 78.
"Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump's term: Zero. Chance of confirming a worthy successor during a hypothetical GOP admin 2029-2033: probably zero (GOP won't be able to recapture enough seats in 28)," DeSantis posted to X on Tuesday night.
DeSantis added that if Republicans lose the seats where prediction markets give Democrats a 90 percent or better chance of winning, the result would be 55 Democrat Senate seats.
Ed Whelan, a conservative legal expert who clerked for the late Justice Antonin Scalia, wrote on X that Trump is now effectively blocked from appointing federal judges or Supreme Court justices during the final two years of his term. "If a Republican is elected president in 2028, that president will not be able to appoint any justices or judges until Republicans regain the Senate," Whelan wrote. "Given the deep hole, that might not happen until 2033."
Whelan also argued that a justice stepping down during the upcoming lame duck session is highly unlikely, saying Republicans would struggle to secure 51 votes. "If Sherrod Brown wins Ohio seat, he gets sworn into Senate in early December, so Senate becomes 52R-48D," he wrote, noting that Sens. Susan Collins and Lisa Murkowski would be unlikely to support anyone Trump would nominate and that John Cornyn, Thom Tillis and Bill Cassidy "aren't going to be eager to do Trump any favors."
Whelan pointed to other senators as well, naming John Curtis of Utah as one who would be leery of anyone Trump would be eager to push through.
