Will Justice Alito Retire Soon?
Samuel Alito, one of the few Supreme Court justices dedicated to the original intent of the Constitution, is considering retirement.
Justice Alito revealed in a recent interview that Republicans have been pressuring him to hang up his robe while they still hold the Senate. Alito said it’s certainly a prospect he considers often. “It’s something I think about, somebody at my age has to think about every term,” he told CBS News chief legal correspondent Jan Crawford. “But I thought I can still make a valuable contribution, which is why I became a judge and justice in the first place.”
Alito is 76. He was nominated by President George W. Bush and confirmed on January 31, 2006, proving that an Establishment Republican president is capable of giving the country a good judge. The other Constitutional stalwart on the Court, Justice Clarence Thomas, was nominated by George H.W. Bush in 1991.
In the interview , Crawford said Republicans had exerted “some pretty intense pressure” on Alito to quit while they still had the power to confirm a “conservative” judge. Polls project Republicans will lose the House in November. The Senate, so far, remains a toss-up, although the closer we get o the election, the cloudier the forecast becomes for the GOP. If Republicans manage to hold on to the upper chamber this November, pressure will likely increase on Alito to step down.
The prospect of nominating another justice is on President Donald Trump’s radar. On Friday, he shared a link on his Truth Social page to a Politico article about Alito considering retirement with the caption : “A great man!!! … Justice Alito confirms he is considering retirement.”
Trump nominated three of the nine justices on today’s Court: Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh. He lamented his nominations after SCOTUS shot down his executive order ploy to implement rules on the Post Office for mail-in ballots.
Originalist Justice
Alito is an originalist. He explained what that means to him:
I have a theory about how the Constitution should be interpreted. I believe it has a fixed meaning. And it still means today what it was understood to mean when it was adopted. And I will not depart from that.
He elaborated, describing how he decides what position to take on every case. Alito again:
We should think again to see, “Is this really what the Constitution demands? Is this really what the law demands?” In the end, if that’s what it says, then that’s what the decision has to be. But we shouldn’t happily accept results that seem to make no sense.
The original intent of the Constitution trumps his personal desires, he told CBS. He brought up his 2018 decision to strike down a federal law banning sports gambling, a decision that clashed with his convictions. Alito:
We paved the way for sports betting throughout the country. And I personally hate gambling. I think sports betting is bad. It’s bad for sports and bad for society. But that’s what the Constitution required. And so that’s what we did.
Alito, however, did vote in February to uphold Trump’s tariffs, which are unconstitutional because it is members of Congress, not the president, who are entrusted to control trade policy. Moreover, tariffs are a type of tax, also in the purview of Congress and not the president. The Court made the right decision in shooting down the president’s tariffs.
Dobbs
Alito’s greatest contribution to the nation is his leading role in overturning Roe v. Wade , the 70s era decision that made abortion a federally protected practice. Alito wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization , which finally reversed that decision. According to the CBS interview, Alito worked hard to “get to five.”
The article describes a justice who relies on reason and well-thought out arguments to bring his colleagues around. The justices write out their opinions on cases and pass them around to each other. They each reply with their arguments and the conditions that will get them on board. “His influence is not through force of personality, but in his ability to thread the needle and find the rationale a majority will agree with,” CBS analyzed. “Those skills allow him to forge consensus for an opinion that moves the law as far as is practicable at the time.”
Dobbs was monumental not only because it overturned the one of the most controversial Supreme Court decisions in American history, but because someone had leaked the Court’s decision before it became public. Alito said he was stunned when that happened, and that they still don’t know who did it. The leak triggered an increase in security for the justices, which continues to this day. “The physical threats and the harassment represent something new in our society, and something that’s quite disturbing,” he said.
Alito believes the leaker’s goal was to bully the judges into changing their minds. He was asked about another common theory, that the leaker was a conservative who wanted to make sure the justices didn’t change their minds. He said that was “implausible” because of the backlash and threats it ended up creating.
Alito said he lost friends over Dobbs , adding that it was somewhat surprising given his longstanding views on the matter.
Alito was also in the minority in the birthright citizenship case that SCOTUS ruled on in June. The Court upheld birthright citizenship by a vote of 6-3. Thomas, Gorsuch, and Alito were the only ones who agreed with the original intent of the citizenship clause. Alito called it one of most “important decisions in the history of the Court,” adding that the Court “made a serious mistake” in his written dissent.
“System Is Not Working”
Alito recently released a book, titled So Ordered: An Originalist’s View of the Constitution, the Court and Our Country . Between the book and what he told CBS, it’s clear he is concerned about the country. He believes America’s constitutional system is under growing “institutional and cultural strain.” He cites examples such as the surge in emergency applications to the Court and the increasing use of executive orders by presidents. Emergency applications “have gone through the roof,” he said. CBS noted that the Court had nearly as many regular cases as emergency applications last term. Alito believes this is happening because “the constitutional system is not working the way the framers intended.”
Alito is also concerned about change in presidential demeanor toward the Court, particularly a president’s willingness to criticize the court for decision they don’t like. He said:
I think it’s damaging. I think it can be quite damaging. There’s been a great change in what presidents have said about the court when they are unhappy about our decisions. But the criticism of the Court — I want to be even-handed on this. The criticism of the Court by President Biden and justices, by President Biden and his administration, was very harsh. And President Trump has been very harsh.
Ruth Bader Ginsburg was 87 years old when she died in September 2020, while still on the Court. Antonin Scalia was almost a decade younger and just a few years older than Alito when he died at 79. At some point in the not-too-distant future, one way or another, the Court will be without Alito. The chances of replacing him with someone equally as dedicated to an originalist view of the Constitution are slim, as Trump’s three nominations have shown. They are nearly zero if the Democrats take the Senate.
