It’s looking more and more like President Donald Trump will be stuck with only having appointed the three Supreme Court justices at whom he has lashed out for not siding with him in every single case.

Despite Democrats winning Senate control this week, Justice Samuel Alito has reportedly discussed his intention not to retire immediately and give Trump a chance to have the outgoing GOP-controlled Senate confirm his successor in the lame-duck period. The new Democratic majority will be fully seated in January.

The New York Times reported Wednesday, citing two unnamed sources, that Alito “told people close to him that he does not intend to retire immediately from the Supreme Court, despite Democrats’ commanding win in Senate contests on Tuesday.”

Bloomberg News had reported ahead of the election that Alito said in an interview that he would not step down even if Democrats won the Senate. Bloomberg also confirmed the Times report Wednesday, citing an unnamed source. CBS News likewise reports that neither Alito nor the other senior-most justice, Clarence Thomas, are planning to retire.

MS NOW has not independently verified those reports, which are consistent with the signals that both justices have been sending. Alito was appointed by President George W. Bush and has served for two decades. Thomas was appointed by Bush’s father, George H.W. Bush, in 1991.

Both justices are in their late 70s, which is not terribly old by Supreme Court standards. And though Thomas is slightly older and has been on the court much longer, the public speculation about Alito’s retirement has been more intense this year. If Thomas stays on the bench through May 2028, he will become the longest-serving justice ever. According to a 1993 Times report, he said early in his tenure that he wanted to stay on until 2034 because, according to a law clerk’s reported recollection of Thomas’ remarks, “The liberals made my life miserable for 43 years, and I’m going to make their lives miserable for 43 years.”

Both Thomas and Alito may need to stay on the court for at least that long if they want to ensure that a Republican president and Senate can confirm their replacements. They would be in their 80s by that point.

President Joe Biden named his lone high court appointee, Ketanji Brown Jackson, after Justice Stephen Breyer, a Clinton appointee, retired at 83 amid pressure from the left to avoid the scenario that let Trump appoint his third justice in his first term: the death of Clinton-appointed Justice Ruth Bader Ginsburg at 87 in September 2020.

As far as we know, Thomas and Alito are not battling serious health issues like Ginsburg did. They may look at Breyer, who is still out and about, and think he left early. Still, whether they will go the Ginsburg route and likewise be replaced by a president and Senate intent on undoing their legacies is likely to remain an open question for years to come.

In the meantime, it appears that Trump will have his two favorite justices on the bench for the rest of his presidency.

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