Clarence Thomas and Samuel Alito have no plans to hang up their robes.
Democrats rolled to a Senate majority in the midterms, and nervous Republicans are staring at the calendar.
But one Supreme Court watcher spotted a way around the whole problem, and it doesn’t need a single retirement.
John Thune leaves the door cracked open
Democrats won the Senate in the 2026 midterms. Current projections give the party at least 54 seats, and races in Alaska and Mississippi could push that number higher.
Republicans hold the gavel only until the new Congress arrives. Senate Majority Leader John Thune (R-SD) told Punchbowl News that the window leaves enough room to confirm a Justice.
“It can be done,” Thune said. “You’re talking about basically 60 days post-election in the lame duck.”
“I certainly wouldn’t rule that out.”
But a confirmation usually needs an empty chair. Justice Clarence Thomas, 78, and Justice Samuel Alito, 76, have both told allies they aren’t going anywhere.
“[They] have both been very clear that they don’t intend to retire this term. I don’t expect that decision to change,” one Supreme Court insider told the New York Post.
The Post reported that retiring US Senator Thom Tillis (R-NC) and Senate Judiciary Committee Chairman Chuck Grassley (R-IA) have both signaled they’d support moving fast on a nominee if the need arose.
And one GOP Senate advisor, speaking without a name attached, aimed the frustration straight at the bench. “I wish they would have retired in the spring,” the advisor told the Post. “[The] country will face the consequences of them not retiring in the spring for many years.”
The same advisor called any pressure campaign on the two Justices hopeless. “I don’t think it would work or anyone thinks there’s a real chance,” the advisor said.
A seat confirmed before it ever opens
Sarah Isgur, whom the Post described as a Supreme Court luminary, posted a workaround on X that skips the retirement fight entirely.
“Alito won’t retire in the lame duck, and he doesn’t need to. Trump can nominate someone to the Supreme Court and the Senate can confirm without a vacancy. Then Trump can wait to sign the commission any time in the next two years. The question isn’t Alito; it’s Cornyn/Tillis/Thune,” Isgur wrote.
Walk through it slowly, because it’s clever. The Senate confirms a successor ahead of time. President Trump holds the commission without signing it. Whenever Thomas or Alito chooses to leave, Trump picks up a pen, and the replacement walks in. A Democrat senator never gets a vote.
But look at who Isgur named at the end. She didn’t point at Thomas or Alito. She pointed at three Republican senators.
US Senator John Cornyn (R-TX) lost his primary to Ken Paxton after spending 2022 helping Joe Biden pass a gun control bill. Tillis has nothing left on the ballot. And Thune runs a conference that, according to the Post, includes moderates whose reaction to a last-minute confirmation nobody can predict.
Words come cheap in a lame duck. “Wouldn’t rule that out” sits a long way from “we will.”
Plenty of insiders told the Post they disliked Isgur’s idea anyway, citing process concerns and a fear that it would guarantee Democrats pack the Court down the road.
Nobody owes the Senate a retirement date
Thomas has spent more than three decades as the Court’s steadiest defender of the Constitution’s original meaning. On the Second Amendment, religious liberty, the swollen administrative state, and color-blind equality under the law, he often stood there first and sometimes alone.
The Left has tried to run him off the bench since the Anita Hill accusations in 1991, which he denied under oath before the Senate confirmed him. And the ethics smears of later years came straight out of the same playbook.
If he stays, Thomas becomes the longest-serving Justice in American history in May 2028. A man with that record doesn’t owe a Senate staffer his exit plan.
Alito wrote Dobbs. He also spent time in the hospital after a health incident in 2026, according to the Post. He’s earned the right to pick his own timing.
And blaming two Justices for the midterm wreckage misses the real culprit, which seems to be the national pastime since the returns came in. Voters who called immigration enforcement crucial broke 58-40 for Republicans in exit polling. The party got hammered anyway, because the neoconservatives who pushed Trump into the Iran war handed Democrats every gas-price ad they ran. Thomas and Alito never cast a vote on that war.
Democrats already wrote the plan
The insiders worried about provoking court packing have the order backwards. Democrats announced the scheme before anybody counted a ballot.
“We will pass Supreme Court reform out of the House after we flip the House. Reform is going to come next year,” US Representative Ted Lieu (D-CA) told the Washington Times in 2026.
Pete Buttigieg came out for expanding the Court in 2026, UnHerd reported, after pitching a so-called bipartisan expansion back in 2019.
And the math isn’t complicated. Thirteen seats would flip a 6-3 originalist majority into a 7-6 Democrat one, as the Washington Examiner laid out. Democrats can’t win the Court through elections and confirmations, so they plan to steal it by adding chairs.
A packed Court would come for Dobbs first, then the rulings that ended affirmative action and race-based gerrymandering. Gun rights, free speech, protections against warrantless spying, a manufactured right to citizenship for illegal aliens, and special legal status for transgender ideology would all land on the table after that.
Republican restraint has never purchased an ounce of Democrat restraint. Harry Reid used the nuclear option on lower-court nominees in 2013, and nobody on the left asked permission first.
The last lame duck that saved the Court
John Adams lost the 1800 election to Thomas Jefferson, and his Federalists lost the Senate along with it. In January 1801, Adams nominated his Secretary of State, John Marshall, as Chief Justice. The lame-duck Federalist Senate confirmed him within a week.
Jefferson’s camp cried foul. But Marshall served 34 years and became the greatest Chief Justice the country ever had.
Then came the twist. Adams sat up his last night in office signing commissions for other judges, and some of them never reached their owners. Jefferson’s Secretary of State, James Madison, refused to hand them over. William Marbury sued, and in 1803 Marshall used Marbury v. Madison to establish that the Court has the final say on what the law means.
Isgur’s plan runs on the very same piece of paper. But this time the President keeps the pen, and no hostile administration stands between the signature and the seat.
Thune has roughly 60 days to decide which kind of lame-duck Senate he wants to lead.
Adams knew exactly what he had done. “My gift of John Marshall to the people of the United States was the proudest act of my life,” Adams said.
<small>Sources: New York Post, “GOP Senate ready for lame duck Supreme Court confirmation, if Alito or Thomas change mind”; Punchbowl News interview with Senate Majority Leader John Thune, as reported by the New York Post; Sarah Isgur post on X; The Washington Times, reporting on Democrat plans for the Supreme Court (June 2026); UnHerd, “Democrats’ court-packing push is an assault on the rule of law”; Washington Examiner, “Democrats game-plan their fascist takeover of the courts”; CBS News, “From nomination to confirmation: What’s the process of filling a Supreme Court vacancy?” Supreme Court Historical Society, “The Marshall Court, 1801-1835”; Federal Judicial Center, “The Midnight Judges”