GOP leadership prepping for Alito retirement before midterm election: report

With the current Supreme Court term coming to an end soon, there is growing speculation that 76-year-old Justice Sam Alito may step down from the seat he has held for 20 years, and that is leading to some under-the-radar maneuvering.

According to the Washington Post, Alito is widely considered the justice most likely to step down, with observers pointing to his age, the release of his first book, and the November midterm elections as potential motivators due to Republican fears of losing control of the Senate.

That has Republican leaders already preparing to fast-track a successor, including Sens. Ted Cruz (R-TX) and Mike Lee (R-UT), both of whom could be pushed through swiftly.

Though recent reports suggest Alito has no plans to retire, the speculation has also triggered a broader shift in judicial behavior across the conservative legal establishment, the Post is reporting.

Legal experts warn that many conservative judges are now deliberately writing attention-grabbing opinions as a form of open "auditioning" for higher office — a phenomenon they attribute directly to Trump's well-documented preference for loyalty and grandiose personalities.

"Trump, and the people around Trump, are going to try to look for people that they have more confidence in even than the previous set of nominees, and that is going to require some kind of further signals of loyalty to the agenda," Daniel Epps, a law professor at Washington University who closely follows the Supreme Court told the Post. "That just increases the incentives to audition as much as possible."

The trend has accelerated since Republicans eliminated the filibuster for Supreme Court nominees in 2017 when Democrats blocked Neil Gorsuch's nomination, allowing confirmations by simple majority instead of requiring a two-thirds vote.

That rule change fundamentally altered the incentive structure for ambitious judges, making partisan grandstanding less risky and more rewarding.

Even before the filibuster elimination, then-appeals court judge Neil Gorsuch demonstrated the effectiveness of the strategy. In 2016, he wrote both the majority opinion and a separate concurring opinion in a federal agency power case — a calculated approach that showcased his judicial philosophy before his eventual Supreme Court nomination.

Mike Fragoso, an attorney at Torridon Law who served as chief counsel to then-Senate Majority Leader Mitch McConnell, acknowledged the phenomenon while noting it can be difficult to distinguish between genuine judicial positioning and deliberate auditioning.

"But in the Trump era, writing buzzy opinions can't hurt a judge's Supreme Court prospects," Fragoso said.