Michael Dorf says that absent a health crisis, a retirement in the next several months would look nakedly political, as Democrats are on track to take the Senate.
Democrats' midterm victory put them on track to take control of the Senate in January, giving them the power to block President Donald Trump's judicial nominees, Above the Law reported on November 5, 2026. The speculation about retirements by Justices Samuel Alito and Clarence Thomas has taken on new urgency.
Michael Dorf, a Cornell Law School professor, was quoted by Above the Law, which said he was speaking to Reuters: "Absent an acute health crisis, a decision to retire in the next several months would appear, and would in fact be, so nakedly political that I doubt Justice Alito or Thomas would take it."
Alito, 76, has said he intends to stay through the current Supreme Court term; Thomas is 78. Both are members of the court's 6-3 conservative majority, and neither has publicly indicated plans to retire, although Above the Law noted Alito has dropped some hints.
If Republicans cannot regain the Senate for years, Thomas would be 84 and Alito 82 by the time a Republican president might again have a Senate majority. Ed Whelan of the Ethics and Public Policy Center put it this way: "Given the deep hole, that might not happen until 2033."
Courthouse News Service reported on November 3, 2026 that Texans elected Democrat James Talarico to the U.S. Senate, and that Democrats were poised to control both the U.S. House and Senate.
