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Is Justice Samuel Alito getting ready to call it quits? A flurry of recent hints has prompted new speculation that the Supreme Court’s most reliably partisan conservative is eyeing the exits in advance of the 2026 midterms. On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern sift through the clues, politics, and legacy management that may be driving Alito toward retirement. They also game out whom President Donald Trump might pick—among the many MAGA judges already campaigning for the seat—as the justice’s possible successor. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: Our friend Elie Mystal wrote a great piece in the Nation saying he thinks Alito is going to step down. Our friends at Strict Scrutiny have also suggested as much. Mark, what’s your gossipy buzz telling you?

Mark Joseph Stern: I agree. And the first reason is the announcement of the justice’s forthcoming memoir, which is pompously titled So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country. Of course, justices do publish books on the bench. But there are some indications that this particular release will be a farewell postscript for Alito’s service. First, it’s coming out on Oct. 6, which is one day after the Supreme Court’s next term begins. As Elie noted, it is unusual for the justices to publish books in October because they like to promote their books, and they can’t do that when they’re stuck in D.C., hearing oral arguments. Justices Sonia Sotomayor, Ketanji Brown Jackson, and Amy Coney Barrett all published recent books in early September—timing that makes sense because that’s when the public is starting to pay attention again. The new term is gearing up, but the justices are not stuck in Washington. They are still free to fly around the country, plugging their latest release. I think it’s pretty unlikely that Alito would drop his memoir on a date when he specifically cannot do that.

Second, Alito just celebrated the 20th anniversary of his confirmation to the Supreme Court. Conservative lawyers and pundits marked the occasion by publishing laudatory articles that had, to me, a distinctly valedictory feel to them. That includes at least one former clerk who may well be in contact with the justice and even have an inkling of his plans. On top of that, Alito gave this rare interview to Politico, which surprised me given that it was Politico that published the leak of his Dobbs draft opinion. So you’d think he might have a grudge. Anyway, in that interview, he seemed to look back over his service and view Dobbs as his finest achievement, almost like the capstone of his tenure. He also hinted that he was not really enjoying the job or the coarse civic culture of our current moment.

Finally, there’s another book coming out, this one by Mollie Hemingway, a MAGA pseudo-journalist, called Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution. It’s going to be this obsequious, bootlicking celebration of Alito’s brilliance. The publisher’s description calls it “the authoritative—and explosive—inside story of Justice Samuel Alito and his powerful role in shaping the Supreme Court.” It seems highly probable that Alito gave interviews to Hemingway, even if it was on background. It feels to me as if he is trying to secure his legacy within the conservative legal movement and the conservative media, which is what matters most to him. And I think that the main reason he would be doing that is because he’s ready to step down and pass the torch.

I was struck by the fact that in the Politico interview, Alito said he wished Justice Antonin Scalia were around to take a victory lap, because the court has achieved so much of what he worked toward and is now finally on the right track. It’s so sad he’s missing it. Within a paragraph, Alito then suggested that Scalia would have been “appalled” by the ugliness, the coarseness of the discourse. Well, who was single-handedly responsible for coarsening the discourse at the Supreme Court for a very long time? Why, it was Scalia! He’d be loving the discourse right now. He built it.

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I also think this love story about originalism from Alito feels a little cynical. You and I have spent a lot of time discussing whether Alito really is an originalist or if whether is perfectly result-oriented and completely political. Either way, I guess the better question isn’t what Alito calls himself but what he does. If he does step down soon, won’t it probably be because he wants Trump to replace him while Republicans hold the Senate? 

Alito is not an originalist. In fact, he’s made fun of originalism before. His jurisprudence is completely aligned with the Republican Party platform. He watches Fox News. I’m sure he reads the polls. He must know there is a real chance that Republicans could lose the Senate in the fall—which, of course, means that he would be stuck on the bench for at least two more years, maybe six more years, maybe even longer.

And we know that his wife, Martha-Ann, has been counting the minutes until Alito can retire so she can fly whatever flag she wants to.

Martha-Ann definitely wants him to step down. And Alito saw how Justice Ruth Bader Ginsburg made a bad bet and wound up getting replaced by a successor who is torching her legacy. He doesn’t want that to happen. He is savvy enough to know that stepping down before the midterms means that Trump can replace him with someone who is just as conservative, if not more so. Republicans have a comfortable margin in the Senate. Retiring now could cement his jurisprudence for years to come with a mini-Alito who is 30 years younger. That’s probably what is guiding his decision more so than anything else. But in fairness, when we give justices life tenure, we empower them to make these kinds of partisan decisions. You can hate the game, but you can’t really hate the player.

Who do you think could potentially inherit the mantle of the man who gave us witchburners as the reason to overturn Roe v. Wade? 

I will throw out two names: Emil Bove, of the U.S. Court of Appeals for the 3rd Circuit, and Andy Oldham, of the U.S. Court of Appeals for the 5th Circuit. I flag Bove because he has already proved his absolute fealty to Trump—first as his personal lawyer, then at the Justice Department, when he struck the corrupt bargain to drop criminal charges against New York Mayor Eric Adams, defied court orders barring the illegal deportation of Venezuelan migrants, and reportedly helped kill the investigation into Tom Homan’s alleged acceptance of a bribe. We know that Trump was disappointed in his first three picks because he felt as if they weren’t sufficiently loyal to him. With Bove, he wouldn’t have to worry about that.

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At the same time, I can imagine that the White House might not want to reopen Bove’s scandals or give Democrats an opportunity to probe them. He’s already gotten his reward with a lifetime seat on the 3rd Circuit. So, to my mind, Oldham is the more likely candidate. He’s a former Alito clerk and a MAGA fanatic who has gone very far out of his way to campaign for this seat with a constant stream of Trump-pandering opinions. He’s even further right than Alito, who has overruled him multiple times. He also looks the part, which may seem like a shallow observation, but we know that that is important to this president. I think he has a leg up on his colleague James Ho, who has also been campaigning for the seat, because Ho will not look the part to this president. If I had to put money down, I’d say Oldham will be the pick, because he’s got the far-right jurisprudence and he looks like the MAGA justice from central casting in Donald Trump’s dreams.

I think you’re aiming way too high in selecting actual sitting judges for this. I’m going to go with Lindsey Halligan and Jeanine Pirro. I know central casting is the most important phrase for Trump when selecting someone. But I also think the “Own the Libs” vibe is such that it could be Kash Patel. You seemed to suggest that gravitas at some level is important. And I’m not sure it’s going to be. 

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