On the night of November 3, 2026, Republicans lost control of the United States Senate. The Associated Press called the chamber for the Democrats late that evening, and some races remained uncalled the next morning, so the final margin is not yet settled. The result nonetheless presents the Second Amendment community with a question of timing that I would rather not raise, and that I believe must be raised: whether Justice Clarence Thomas and Justice Samuel Alito should announce their retirements now, effective upon the confirmation of their successors.
I offer that recommendation with affection and respect. I regard both men as among the most consequential Justices in American history. It is a judgment about the calendar, not about their work.
The Calendar
The current Senate remains in Republican hands until the new Congress is seated, which I expect on January 3, 2027. After that date, I see no realistic prospect that a Democratic majority will confirm a nominee of President Trump to the Supreme Court, and I expect that condition to last at least through the 2028 elections. That is a forecast, but it rests on a plain reading of incentives.
It also rests on precedent. In 2016, after Justice Scalia’s death, Senate Republicans declined to hold a hearing or a vote on Judge Merrick Garland, whose nomination lapsed on January 3, 2017. A Democratic Senate that follows that example would only be applying the rule it was taught, and I do not fault it for doing so.
The practical consequence is that a vacancy arising after January 3 may sit unfilled for years. Even a Republican victory in 2028 would not assure a Republican Senate. A vacancy in the Thomas or Alito seat would then be filled, if at all, by a nominee acceptable to the other party, or by a Democratic President.
What the Senate Can Do in Two Months
The objection that a confirmation cannot be completed in the time available is answered by recent history. Justice Ruth Bader Ginsburg died on September 18, 2020. Justice Amy Coney Barrett was confirmed on October 26, 2020, by a vote of 52 to 48, thirty-eight days later. When a Senate majority wishes to confirm a Justice, it can do so within weeks.
Senate Majority Leader John Thune has said as much. He was reported in July as saying that a lame-duck confirmation could be done.
The arrangement I propose protects the Justices. Each would announce that his retirement takes effect upon the confirmation of a successor. If no successor is confirmed before the Senate changes hands, the seat is not lost, and the Justice remains on the bench. That is the ordinary practice for departures from the Court.
Two Justices, Long Careers
Justice Thomas, born in 1948, is 78 and has served since 1991. Justice Alito, born in 1950, is 76 and has served since 2006. Between them they have written much of the modern Second Amendment, and they are at the height of their influence. That is precisely the point. A Justice leaves at his strongest when the choice is his, and the successor can be chosen by a Senate that shares the Justice’s constitutional commitments.
I recognize that neither Justice has signaled any such plan. Justice Alito told Bloomberg Law in an interview published October 6, 2026, “I intend to stick around through this term,” and added, “I made that decision many months ago.” I do not read that statement as an obstacle to my argument. He made it before the election results, and I will not put words in his mouth about what he will do now. I do not expect either Justice to retire on the strength of my advice.
The Stakes for the Second Amendment
The Court will hear argument on December 2, 2026, in Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, the consolidated challenges to Cook County’s and Connecticut’s bans on AR-15-style rifles. I remain confident that we will prevail. The AR-15 question will not be the last Second Amendment question the Court faces, and the composition of the Court over the next decade will decide the rest.
If a seat held by Justice Thomas or Justice Alito passes to a nominee chosen under a Democratic Senate and a Democratic President, I fear that the outcome would resemble the appointment of Justice Ketanji Brown Jackson, and that the Court’s Second Amendment jurisprudence would be at risk. That is a scenario, not a certainty, and I raise it without relish.
Setbacks are not defeats. President Trump remains in office, the AR-15 cases will be argued, and the cause does not depend on any one election night. I believe it also asks something of those who have given the most to it. No credential, no success, and no measure of fame is worth losing the country over. I make this appeal in the spirit of tough love, and I make it to two Justices whom I admire.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.