Samuel Alito could give Trump another Supreme Court pick

Samuel Alito, a suspected leaker of the Dobbs and Hobby Lobby Supreme Court decisions, wine aficionado and far-right flag waver, has a new book coming this fall.

Ordinarily, a Supreme Court justice’s book is an opportunity to line their pockets with a hefty advance, enjoy the perks of a lecture tour and sit for gentle interviews with hand–picked partisans who gullibly swallow the usual line about how they’re students of the Constitution, not robed, opportunistic hacks. 

Yet The Nation’s Elie Mystal noticed something unusual about the publication date of Alito’s forthcoming doorstopper “So Ordered: An Originalist’s View of the Constitution, the Court, and the Country.” It’s scheduled to hit bookstores on Oct. 6, the second day of the Court’s 2026-27 term. Alito, whose appreciation for private jet travel is well-established, would ordinarily be due at his day job.

Unless, as Mystal suggested, the justice plans to retire. 

Certainly, Alito must be enjoying life as a leader of the court’s conservative supermajority. You know, making it more difficult to vote, overturning reproductive rights and gutting the regulatory state, all while being feted each summer at a religious summit in Rome or hosted by a princess at a European castle. 

Yet the 75-year-old is also enough of a savvy political analyst to understand that this could be his last chance to preserve his seat for conservatives for decades to come. Republicans remain favored to hold the Senate this fall. But what if Democrats ride a blue wave and take control, summon their inner Mitch McConnell to block any late-term Trump selection and then take back the White House in 2028? 

In that case, Alito might then need to white-knuckle it through six years of annual physicals to ensure the GOP retains its current edge. It’s a tough call: hobnob with European aristocrats and feel the thrill of executing the innocent if they, whoopsie, miss an appeal deadline, or allow some younger, red-robed Federalist Society/MAGA partisan the opportunity to abet pay discrimination against women.  

As Democrats ruefully learned in September 2020 with the death of Ruth Bader Ginsburg, riding it out, fingers crossed, is a really dopey strategy.

So given the high stakes and the court’s role as the true source of GOP political power, the smart money suggests that Alito, with his eye on the long game, may well step down. After all, Republicans have long understood the power of each Supreme Court seat. In the end, they know that what matters isn’t the brilliance of any individual justice — that there is no indispensable justice. Power flows from ensuring that they are replaced by someone who wears the same color robe.

Republicans play this game far better than Democrats. Back in 2013, when Democrats controlled the Senate and the White House, liberals, with an eye toward locking in power, encouraged then-justices Ginsburg and Stephen Breyer, who were both known to have health difficulties, to step down and hand their seat to any younger, replacement-level jurist. Louder, less strategic voices instead built a cult of personality around Ginsburg, crafted dissent collars to sell on Etsy and dismissed any calls for a justice with pancreatic cancer to step down as sexist. These deep thinkers hopefully appreciate their Christmas cards from Justice Amy Coney Barrett.

It’s time to hate the players and the game. An Alito retirement, after all, makes perfect sense. He has dedicated his life’s work to the conservative legal movement. A well-timed retirement allows a president of his own party to fill the vacancy. The incentives are obvious to all. Every justice appointed since Clarence Thomas in 1991 who has left the court voluntarily has timed their departure to allow a president of the same party to name his or her successor. 

Congress must fix this. It is dangerous enough for the rule of law that the high court has been captured by ideologues determined to use it to impose a radical, religious agenda upon a representative democracy that would roundly reject those outcomes at the ballot box. No nine people should hold this kind of veto-proof, extra-legislative authority for life, and then be allowed to choose who replaces them as a robed god for the next four decades.

The nation badly needs Supreme Court reform. It should be enlarged to protect the Constitution and the rule of law. There should be ethics codes so that hidden, cozy financial relationships between justices and right-wing billionaires with business before the court are disallowed, along with the private planes, tuition payments, luxury vacations, real estate deals and European junkets from which the justices and their extended families benefit. There should be term limits and a mandatory retirement age to ensure no single person or political party can blockade themselves on the court for life.

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An unelected supermajority of six — the masterfully achieved goal of five decades of conservative scheming, bought and paid for by billionaires, wielding its power swiftly and steadily on behalf of wealthy donors, the religious right and the Republican Party — has created an existential crisis for democracy and majority rule. The American public understands this: The court’s credibility has cratered to its lowest ratings ever in recent opinion polls, which often show that fewer than four in 10 Americans view the institution favorably.

Alito, Thomas and other conservatives insist that the only thing partisan about their rulings is the critique that they are partisans. They playact befuddlement that they might possibly be viewed as anything but scholars following the original intent of the Constitution. This they either expect us to believe — even as Christian nationalist and distress flags hang in the Alito’s front yard, or they are simply so safely and permanently ensconced in power as to no longer care. 

There are many reasons not to believe the conservative justices when they deny being partisan actors. But strategic retirements like this might be the most compelling argument. After all, if justices of either side were simply following the Constitution and the rule of law, the political party which appoints them shouldn’t make every world of difference. Few among us remain this naive. 

Large majorities back the obvious fix. Congress could impose term limits. Each justice could be limited to 18 years on the bench, with each president receiving two selections during each term. The stakes of presidential elections would be clear. Historical accidents like Donald Trump receiving three appointments and Jimmy Carter none would come to an end. There would be no unseemly deal making between the White House and the justices, such as the reported arrangements between Trump officials and Justice Anthony Kennedy before he stepped down in 2018 and was replaced by Brett Kavanaugh, one of his former clerks.

The nation’s confidence in the institution has dramatically eroded. The court’s own actions, unseemly ethics and the obvious-to-all connection between its decisions and political outcomes — say, granting a Republican president unbound powers under the made-up unitary executive theory, but tying the hands of a Democrat with the equally made-up major-questions doctrine — are to blame. 

Back in 2010, Chief Justice John Roberts told C-SPAN that the “most important thing for the public to understand is that we’re not a political branch of government. They do not elect us. If they do not like what we are doing, it’s more or less just too bad.”

But we can, and we must, act. Reining in this imperious, arrogant court might be the most important first step toward placing this nation on a road toward a rebuilt, strengthened democracy. Putting an end to these phony strategic retirements — by both sides — would be an obvious place to start.