The political landscape has shifted dramatically after last week's Democratic sweep, and the Supreme Court's conservative wing is now confronting a familiar dilemma: the perils of holding onto power too long. Justice Samuel Alito, at 76, is facing what some legal observers are calling the "Ruth Bader Ginsburg syndrome" — the risk of losing a generational opportunity to shape the Court because of a refusal to step down at the right moment.
Ginsburg, the liberal icon, famously stayed on the bench despite her failing health and advancing age, believing she could outlast the Trump administration. She died in September 2020, and President Trump swiftly replaced her with Justice Amy Coney Barrett, cementing a 6-3 conservative supermajority. Now, with Democrats poised to take control of the Senate in January, Alito's own decision to remain through the Court's term in June could hand President Trump and Republicans a similar strategic defeat.
According to the New York Times, Alito has told friends he intends to serve through the end of the term, even though the new Democratic Senate will be seated in January. This stance contradicts the hopes of conservatives who had urged him to retire during the lame-duck session, when Republicans still hold a 53-47 majority. Alito's own words from last month echo Ginsburg's confidence: "I intend to stick around through this term," he told Bloomberg News.
The stakes are immense. If Alito were to step down now, Trump could nominate a young, hard-line conservative and push for confirmation before the power shift. But the political math is not simple. Legal experts note that even with a Republican majority, a nominee would face potential defections from outgoing senators like John Cornyn (R-TX) and Bill Cassidy (R-LA), who lost primaries to Trump-backed challengers, as well as moderates Susan Collins (R-ME) and Lisa Murkowski (R-AK), who have shown independence from Trump's agenda.
Conservative legal analyst Ed Whelan, who had previously predicted Alito would retire in spring 2025 and Thomas in 2026, now concedes that the window is closing. "No justice is going to announce in the next few days that he will be stepping down," Whelan wrote, adding, "Justices don't make snap decisions about retiring." He suggests that if Alito and Thomas wait too long, they may not see a Republican president again until 2033, by which time they would be in their 80s.
Justice Clarence Thomas, 78, has already ruled out retirement, hinting he could serve for decades more. If he remains through May 2028, he would break the record for the longest-serving justice in history. But his tenure is also clouded by ethics controversies, including unreported gifts from billionaire Harlan Crow, which could become a focus of a Democratic Congress.
The Democratic victory also brings broader implications for the Court. Polls show bipartisan support for enforcing the ethics code adopted in 2023 and for imposing term limits on justices. A Democratic Congress could move on both fronts, potentially reshaping the institution that has drifted rightward for decades.
Alito, for his part, has acknowledged thinking about retirement but insists he can "still make a valuable contribution." That echoes Ginsburg's own rationalization, and conservatives worry it may lead to the same outcome: a lost seat and a legacy defined by what could have been. As the Supreme Court's conservative majority faces new risks, the clock is ticking for Alito to avoid the Ginsburg trap.
The coming weeks will reveal whether Alito and Thomas heed the lessons of history or repeat them. For now, the ball is in their court, and the consequences of inaction could be felt for a generation.
