Megyn Kelly Says Samuel Alito May Have Missed His Window to Retire

Megyn Kelly said on Thursday that Justice Samuel Alito is weighing retirement, possibly next year, and that Tuesday's Democratic Senate takeover has probably shut him out of a Republican-confirmed successor. She cited a source she did not name.

On The Megyn Kelly Show, the host said the midterm losses could cost conservatives more than Congress.

PolitiKool has not confirmed Kelly's account of Alito's plans.

What Megyn Kelly Said About Alito's Retirement

Kelly said Alito had been asked about retirement while promoting his book this fall. "He admitted maybe next year like he basically said not not right now but I am thinking about it soon and maybe next year," she said, adding: "I can confirm that directly based on a source in a very good position to know."

She then gave her verdict on what the new Senate means for any successor.

Ginsburg, a liberal justice, turned down calls to step aside while President Barack Obama and a Democratic Senate could have replaced her. She died in September 2020, and President Donald Trump filled her seat with Justice Amy Coney Barrett.

According to Kelly, Alito is now "stuck there ... She said Justice Clarence Thomas, 78, is "committed to serve until he dies."

What Alito Has Said in Public

Alito has said he thinks about retiring but has not set a date. In a CBS News interview with Jan Crawford that aired October 5, timed to his book So Ordered, he said: "I thought about it. It's something I think that somebody at my age has to think about every term. But I thought that I could still make a valuable contribution."

He also told CBS: "It's too hard to predict how, for anybody, and particularly when you reach a certain age, what your situation will be a year from now, two years from now."

NPR retracted a story that said Alito was retiring.

The Senate Math After Tuesday

Democrats have won at least 54 Senate seats to the Republicans' 44, CBS News projects. They flipped Texas, South Carolina, Kansas, Maine, Iowa, Ohio and North Carolina. Alaska and Mississippi have not been called. Democrat Scott Colom led Senator Cindy Hyde-Smith in Mississippi by fewer than 2,000 votes, and Senator Dan Sullivan and Mary Peltola were in a close race in Alaska.

Kelly said Democrats "may wind up with 56 seats by the way that's four from sixty which is a filibuster proof majority." Getting to 56 means winning both uncalled races. Supreme Court nominees have needed only a simple majority since 2017, so the filibuster no longer applies to them.

Her guest, Jesse Kelly, host of The Jesse Kelly Show, said the Senate loss could outlast Trump's term: "it might be president JD Vance or president Ron DeSantis who can't get a Supreme Court justice on there."

Ages and Tenures on the Court

Thomas joined the court on October 23, 1991, and Alito on January 31, 2006, according to the Supreme Court's official biographies. Chief Justice John Roberts, 71, was sworn in on September 29, 2005. Justice Sonia Sotomayor, 72, is the oldest of the court's three liberals.

The Precedent for Kelly's Warning

The most recent precedent supports Kelly's warning. President Barack Obama nominated Merrick Garland on March 16, 2016, and the Republican-led Senate gave him neither a hearing nor a vote. Senator Dick Durbin called on Senate Republicans to give Garland a hearing and a vote. The nomination expired in January 2017.

But the record has gone the other way, too. A Democratic Senate confirmed Justice Anthony Kennedy, President Ronald Reagan's nominee, 97-0 in February 1988, during Reagan's last full year in office. The same chamber had rejected Robert Bork only months before.

Kelly told her audience Thursday that the Iran war cost Trump control of his party. Whether Alito stays through 2028, or tests a Democratic Senate with a vacancy in 2027, has not been decided, and only he can decide it.