Will Trump get a fourth Supreme Court justice? Speculation swirls around Alito

WASHINGTON − Will President Donald Trump get the chance to nominate a fourth Supreme Court justice?

Speculation, particularly among liberal commentators, has started to swirl around possible retirement plans of Justice Samuel Alito.

Alito, the second-oldest justice and one of the most conservative, joined the high court 20 years ago.

“That is usually a very good milestone on which to retire,” Melissa Murray, a law professor at New York University, said on the latest episode of the podcast Strict Scrutiny that she co-hosts.

And if Alito wants to step down while Republicans control the Senate, he may not want to gamble on this year’s midterm elections.

Republicans are expected to have a much easier time retaining the Senate than the House, but a loss can’t be ruled out. That would make it difficult for Trump to confirm a successor.

Because Senate Republicans may not want to hold a confirmation hearing during the fall of an election year, Alito could announce in the next few weeks that he will step down at the end of the term, Strict Scrutiny co-host Kate Shaw speculated.

Finally, Alito is coming out with a book in October, right as the court will be starting a new term.

Steve Vladeck, a law professor at Georgetown University who writes about the court on Substack, called the publication date “a pretty big tell since one can’t exactly go on a book tour during the first argument session of the term.”

Books published in the last few years by Justices Ketanji Brown Jackson and Amy Coney Barrett were published in September, allowing time for the justices to promote them before diving into a new term.

But court watcher and lawyer David Lat, who writes about the law, wondered recently whether an October publication date is a sign that Alito is staying put.

“Book buyers are much more interested in what a current justice has to say, as opposed to a retired one,” Lat wrote on Substack. “I could see Justice Alito not wanting to step down until well after publication.”

And in a recent assessment of the chances for a Supreme Court vacancy, Washington consultant Bruce Mehlman noted that all of the justices are well-below the average age of 79 for those who’ve stepped down in recent years. (Alito will be 76 in April.)

More: Alito and the upside down flag: What the symbol means to ‘stop the steal’ crowd

Mehlman also wrote that Alito, along with Justice Clarence Thomas, are among Trump’s most reliable votes on the court.

“And while the President retains massive sway with Congressional GOP, his ability to demand fealty on future nominations may be diminishing,” Mehlman said on Substack.

But Mehlman also pointed out that eight of the past 10 presidents have had at least one Supreme Court opening in the first two years of their term.

Trump, during his first term, nominated Neil Gorsuch to fill the seat that became vacant during President Barack Obama’s last year when Justice Antonin Scalia died. Trump nominated Brett Kavanaugh to replace retiring Justice Anthony Kennedy in 2018. He nominated Barrett to replace Justice Ruth Bader Ginsburg, who died in 2020.

More: Justice Alito still doesn’t like court’s gay marriage decision but said it’s precedent

Only three presidents since the 1950s – Dwight Eisenhower, Richard Nixon and Ronald Reagan – got to fill more Supreme Court openings.

If Alito does step down, Trump would have the chance to appoint a much-younger justice who could help maintain the court’s conservative majority far into the future.

The only sitting justice who is older than Alito is Thomas, who is among the longest-serving justices in history. Thomas, 77, could set the record if he stays through May 2028, a reason some court watchers don’t expect him to step down now.

This article originally appeared on USA TODAY: Supreme Court Justice Alito’s upcoming book sparks retirement buzz