Justice Samuel Alito Won’t Hang Up His Robes Anytime Soon

On Jan. 31, Justice Samuel Alito celebrated his 20th anniversary as an associate justice of the US Supreme Court.

On April 1, he’ll turn 76.

On Oct. 6, he’ll release his first book, “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country.”

And on Nov. 3, Americans will go to the polls to vote in the 2026 midterm elections.

This combination of dates has led commentators to ask: Could Alito be preparing to hang up his robes? Might 2026 be the year that Alito retires from the court, allowing President Donald Trump to appoint a similarly conservative—but significantly younger—successor?

This latest round of retirement speculation appears to have been kicked off by my former colleague from Above the Law, Elie Mystal. Earlier this month, he published a column in The Nation with this provocative title: “Is Samuel Alito Preparing to Disrobe?”

After noting how the publication date for Alito’s book falls only one day after the start of the court’s 2026-2027 term, Mystal suggested that “Alito doesn’t plan on having a real job the Tuesday his book launches, and instead thinks he’ll be free to run around the country promoting it.” Mystal then pointed out that retiring at the end of the court’s current term “would give Trump, and the Republicans who still control the Senate, time to appoint and confirm his replacement before the midterm elections” (emphasis in the original).

Other pundits picked up on this prediction. Georgetown University law professor Steve Vladeck agreed that “the October publication date is a pretty big tell, since one can’t exactly go on a book tour during the first argument session of the term.” (Mystal and Vladeck, both authors of bestselling books, understand the importance of book promotion.)

On the popular podcast Strict Scrutiny, New York University law professor Melissa Murray noted Alito’s 20th anniversary as a justice, calling it “a very good milestone on which to retire.” Echoing Mystal, she added that “the signs are not looking great for the Republicans in the midterms”—and if Republicans were to lose control of the Senate, that would make it much more difficult to confirm a nominee in the mold of Alito.

While I understand these points, I respectfully dissent. I stand by my earlier prediction that Alito won’t retire this year.

First, Alito remains energetic and engaged as a justice. He continues to produce solid and smart, if not particularly stylish, opinions—and he’s known around One First Street for being one of the least clerk-dependent justices. As former Alito clerk Ben Aguiñaga, now the solicitor general of Louisiana, wrote in a recent tribute to his former boss, “On more than one occasion, email chatter from him would go quiet, and then a flood of perfectly cited draft opinions would come streaming in. He did not need us.”

Alito participates actively in oral argument, and he’s one of the shrewdest questioners on the current court. I argued before him twice, back when he was a judge on the US Court of Appeals for the Third Circuit. Advocates have known for decades that they need to think carefully before responding to his questions (despite his unprepossessing demeanor on the bench).

Take last November’s oral argument in the tariffs case, Learning Resources, Inc. v. Trump, concerning whether the president’s emergency power to “regulate … importation” includes the power to impose tariffs. Alito posed this hypothetical: “[S]uppose that there’s a particular national park that’s very crowded, and Congress passes a statute that says the National Park Service may regulate admission to the park. Would you say, well, that does not allow them to impose a fee?” It was one of the most challenging questions that Neal Katyal, counsel to the tariff challengers, had to field.

Second, Alito is still years away from the ages that justices have retired at in recent years. Justices Stephen Breyer and Anthony Kennedy served until they were 83 and 82, respectively—and Justices Ruth Bader Ginsburg and John Paul Stevens stayed on the court until they were 87 and 90, respectively. Even if he served until the end of Trump’s term in January 2029, Alito would still be shy of 80.

Third, and finally, the publication of Alito’s book might, if anything, suggest that he’s staying put. Book buyers are far more interested in the thoughts of a current justice as opposed to a retired one: The memoirs of Justices Ketanji Brown Jackson and Amy Coney Barrett became bestsellers, while the memoir of retired Justice Kennedy did not. So I could see Alito not stepping down until well after publication of “So Ordered.”

As for the Oct. 6 publication date, I’m assuming Alito and his publisher simply wanted to take advantage of the spike in media coverage of the court that the start of a new term brings. Yes, this will curtail Alito’s ability to go on a book tour or do signings—but I’m guessing that’s a feature, not a bug, from the justice’s point of view.

As former clerk Aguiñaga put it, Alito is “famously introverted.” I’ve crossed paths with the justice a few times over the years, and I can confirm the characterization of him as an introvert. Having to meet and make small talk with hundreds or even thousands of strangers, in cities across the country, would be torture for him.

In addition, as the author of Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, Alito would be guaranteed to face protesters at many of his book events. And sadly, in this day and age, going on a national book tour would raise serious security concerns for him as well. I wouldn’t be surprised if, when negotiating his publishing contract, Alito specifically bargained for limitations on his own promotional duties rather than guaranteed promotion by his publisher.

At a conference I recently attended, three former Supreme Court clerks who now litigate before the high court were asked about a possible Alito retirement. Two out of three predicted that he’s not going anywhere, at least for now—and I concur. Whether they like it or not, my guess is that the left will still have Alito to kick around some more.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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