Dem
47
GOP
53
Supreme Court Justice Samuel Alito is a big gambler. No, he doesn't go to the racetrack and bet on the ponies, or go to Las Vegas to play cards. He is betting the farm that the Democrats don't capture the Senate on Nov. 3. Specifically, he told The Wall Street Journal that he is going to serve another year (or more) on the Court. If he stays one more year and the Democrats capture the Senate, then it is very unlikely Donald Trump could get a replacement confirmed. And unlike most federal agencies, Trump cannot appoint an acting justice for 120 days.
A Democratic Congress under Trump could suddenly begin acting like, well, an independent branch of the government. For example, the Senate's constitutional duty is to "advise and consent." Everyone seems to forget the "advise" part. Suppose the Senate handed Trump a list of five possible names he could nominate, with a sticky note attached reading: "If you pick one of these, we will consent; otherwise, we will not." That would give the Democrats cover to keep the seat open until at least Jan. 20, 2029.
Alito is the most partisan justice and would never tolerate being replaced by a Democratic president, but his window of resigning and being replaced by Trump may end on Jan. 3, 2027. After that, there is no guarantee. And if a Democrat is elected president in 2028, Alito will have to stay on until at least Jan. 20, 2033, or heaven forbid, Jan. 20, 2037. Alito is currently 76, so he probably has a few more years in him, but not getting out while the getting is good makes it uncertain whether he will be replaced by another Republican. He served together with Ruth Bader Ginsburg for 14 years, but he is apparently not a quick study. Of course, if the Democrats capture the Senate, he could still resign in December and have his replacement be confirmed in a lame duck session of the Senate. That would look extremely partisan, but Alito has given up all pretenses of being an umpire who just calls balls and strikes depending on the pitch. When a Republican is president, he calls only balls. When a Democrat is president, he calls only strikes.
Justice Clarence Thomas hasn't resigned either in the window of opportunity, but he almost certainly has other fish to fry. If he makes it until May 20, 2028, he will be the longest serving Supreme Court justice ever. That'll show the libs. Of course, that too is a gamble, since Donald Trump (or maybe J.D. Vance) will be president at the end of the Court's term in late June 2028. But the Democrats could possibly control the Senate then, even if they don't get to 51 seats on Nov. 3. For example, Rob Sand (D) is a slight favorite to be elected governor of Iowa and Sen. Chuck Grassley (R-IA) will be almost 95 then.
But Thomas is different from Alito. He doesn't care much about the Republican Party. He cares only about Clarence Thomas. Losing a seat on the Court wouldn't bother him the way it would bother Alito. (V)