Speculation is building among judicial conservatives that Justices Thomas and Alito could retire if Democrats win Tuesday's midterm elections, in the hope that a Republican Senate would confirm replacements chosen by President Donald Trump before January 3, 2027.
Control of Congress is on the ballot, with the outcome set to shape the final two years of President Donald Trump's term. Democrats need a gain of four seats to take the Senate, which would give them the power to limit Trump's ambitions, reject his judicial nominations and investigate his administration, the BBC reports. Independent analyst Cook Political Report rates seven of the 35 races as toss-ups, and prediction markets currently put Democrats' chances of winning the chamber at 75%, according to Reason magazine.
Writing in Reason, Dale Carpenter says judicial conservatives have been discussing whether Thomas, 78, and Alito, 76, should step down after a Democratic victory, betting on a lame-duck confirmation rather than risking that a future Democratic president could fill the seats. Neither justice has disclosed a serious health risk, and both have indicated they have no plans to retire this year. Carpenter notes that Justice Barrett was confirmed within a month of her nomination on the eve of the 2020 election, and that Justice Ginsburg's failure to retire in 2014, her last clear chance to retire with a Democratic president and Senate, is a cautionary example. But he guesses Thomas and Alito would see an immediate post-election retirement as too costly to the Court's reputation.
In Europe, the result is being eagerly awaited. Two years after Trump's re-election, the 27 EU member states have felt the full force of decisions by a US president hostile to them, from the Middle East and Ukraine to tariffs and Greenland, and there are questions about whether a Democratic Congress would bring any change in course, Politico Europe reports.
The seven toss-up contests include the race the BBC describes as the most expensive Senate race ever and one of the most bitter contests. In Texas, Ken Paxton, supported by more than $170m in funds from tech mogul Elon Musk, faces Democrat James Talarico in what the BBC describes as the most expensive Senate race ever; Talarico has focused on Paxton's 2023 impeachment for alleged corruption, which Paxton called a 'politically motivated sham from the beginning.' In Michigan, Republican Mike Rogers and Trump have sought to link Democrat Abdul El-Sayed to the Muslim Brotherhood, and Trump has called him a 'jihadist' without citing evidence, prompting a backlash and accusations of Islamophobia. El-Sayed, who would be the first Muslim elected to the US Senate, has denounced the organisation.
In Alaska, where ranked-choice voting adds uncertainty, Republican Senator Dan Sullivan faces Democrat Mary Peltola, a former House member running on a platform of 'fish, family, freedom.' The race has been marred by controversy over a second Dan Sullivan on the ballot. Sullivan has accused Peltola's campaign of links to an effort to confuse Republican voters that led to a second man named Dan Sullivan entering the race; the campaign denies any such link, and the issue is the subject of a state investigation and a Justice Department lawsuit rejected by a judge on Sunday.
The remaining toss-ups are in Maine, where Susan Collins faces logger Troy Jackson; Kansas, where a victory for Methodist pastor Adam Hamilton would be the state's first Democratic senator since 1932; Iowa, where Trump campaigned on his final day of campaign rallies and Republican Ashley Hinson faces two-time Paralympic gold medallist Josh Turek, who argues that Trump's tariffs have brought 'farmageddon'; and Ohio, where Republican Jon Husted, appointed to the seat vacated by Vice-President JD Vance, faces former senator Sherrod Brown in a race the BBC describes as a referendum on Trump's economic policies, particularly his trade wars.
Analysis
Why This Matters
- Control of the Senate dictates whether Trump can pass legislation, confirm judicial and executive nominees and pursue his agenda in his final two years.
- A Democratic win would open the question of Supreme Court retirements in the lame-duck period, potentially triggering an immediate confirmation fight.
- European governments, hit by US decisions on tariffs, Ukraine, the Middle East and Greenland, are watching whether a Democratic Congress changes Washington's course.
Background
The midterms fall two years into Trump's second term, with Republicans controlling both chambers. Democrats need a net gain of four Senate seats to take the upper chamber, which would let them block legislation and nominations and launch investigations. Cook Political Report rates seven races as toss-ups: Alaska, Maine, Texas, Michigan, Iowa, Kansas and Ohio. The Supreme Court has a 6-3 conservative majority, and Thomas is 78, Alito 76.
Key Perspectives
- Some judicial conservatives (per Reason): are increasingly discussing whether Thomas and Alito should retire if Democrats win, using the Republican lame-duck Senate to confirm successors rather than risk losing the seats for years.
- Dale Carpenter (Reason): predicts the justices would resist, seeing an immediate post-election retirement as too damaging to the Court's reputation, though the Ginsburg example cuts both ways.
- Europeans (per Politico Europe): are waiting impatiently for results, asking whether a Democratic Congress could actually shift US policy on the Middle East, Ukraine, tariffs and Greenland.
What to Watch
- Whether the prediction-market expectation of a Democratic Senate, put at 75%, is borne out across the seven toss-up states.
- Any retirement announcement from Thomas or Alito, or a push by the White House and Republican Senate to confirm replacements, before January 3, 2027.
- Alaska's ranked-choice count, which could be the tipping point for control and among the slowest results to arrive.
Checked
12 claims in this story checked against 3 sources: 12 supported.
Show each claim
- SupportedJudicial conservatives are increasingly discussing and supporting the possibility that Thomas and Alito will retire if Democrats take the Senate.Reason Magazine: “In recent conversations, I've heard increasing speculation and support for this possibility among some judicial conservatives.”
- SupportedDemocrats need a four-seat gain to take control of the Senate.BBC News: “A four-seat gain by Democrats would give them control”
- SupportedCook Political Report rates seven of the 35 Senate races as toss-ups.BBC News: “There are seven Senate races deemed to be a toss-up by independent elections analyst Cook Political Report, external.”
- SupportedThe proposed retirements would aim to let a Republican Senate confirm Trump-chosen replacements before January 3, 2027.Reason Magazine: “Will Justice Thomas and/or Alito retire if Democrats take the Senate in tomorrow's election, hoping that the lame-duck Senate will confirm a nominee chosen by President Trump?”
- SupportedNeither justice has disclosed a serious health risk, and both have indicated they do not plan to retire this year.Reason Magazine: “Neither has disclosed a serious health risk, and both have indicated they have no plans to retire this year.”
- SupportedEuropean countries await the midterm result and question whether a Democratic Congress would change US policy toward them.Politico Europe: “Les Européens attendent avec beaucoup d’impatience de connaître dans la nuit de mardi à mercredi le résultat des élections de mi-mandat aux Etats-Unis.”
- SupportedThe BBC describes the Texas contest as the most expensive Senate race ever.BBC News: “His match-up with Ken Paxton has become the most expensive Senate race ever.”
- SupportedPaxton is supported by more than $170 million in funds from Elon Musk.BBC News: “Supported by more than $170m in funds from tech mogul Elon Musk, Paxton has attempted to paint Talarico as a liberal”
- SupportedPaxton called the impeachment a “politically motivated sham from the beginning.”BBC News: “Paxton denied the charges and was later acquitted by the state Senate, calling the impeachment a "politically motivated sham from the beginning".”
- SupportedTrump called Abdul El-Sayed a “jihadist” without citing evidence, prompting backlash and accusations of Islamophobia.BBC News: “The president has also invoked 9/11 and even called him a "jihadist" without citing any evidence, prompting a backlash and accusations of Islamophobia.”
- SupportedDan Sullivan accused Peltola’s campaign of links to an effort to confuse Republican voters that led to another Dan Sullivan entering the race; the campaign denies a link, and a judge rejected the Justice Department lawsuit on Sunday.BBC News: “Sullivan has accused Peltola's campaign of links to an effort to confuse Republican voters which led to a second man named Dan Sullivan entering the race. The Peltola campaign denies any such link, though the issue is the subject of a state investigation and a justice department lawsuit, which on Sunday was rejected by a judge.”
- SupportedTurek argues that Trump’s tariffs have brought “farmageddon.”BBC News: “Turek argues that Trump's tariffs have led to "farmageddon" in the largely rural state.”