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This November, Vote Like Samuel Alito Is on the Ballot

In this week’s Elie v. U.S., our justice correspondent examines Alito’s retirement gambit and the fight over his successor. Plus: how Trump’s proposed protest fence threatens free speech and what Sarah Huckabee Sanders’s Medicaid ad reveals about racism.

Samuel Alito Jr., associate justice of the US Supreme Court.

The Supreme Court headed back to work this week, hearing four cases over its first five days. At the same time, Justice Samuel Alito has been making the media rounds, promoting his new book on originalism and complaining about how his disgusting, politicized opinions are portrayed in the press.

Regular readers of this newsletter will remember that I predicted Alito, who turned 76 in April, would have retired by now. I thought that he timed his book launch so that he’d be able to promote it without juggling cases, and that he’d want to give Republicans a chance to replace him before the midterms. Turns out I was wrong, though I’m quite happy to have been wrong. Alito’s decision to remain on the court means there’s a chance that Democrats can win the Senate and block his replacement for the next two years. And now there’s also a chance that Democrats can win the White House and the Senate in 2028, which spins the actuary table through 2032. By refusing to retire, Alito’s given the Democrats a potential win, because dealing with Alito for another few years is preferable to dealing with Alito’s Republican replacement for another 30.

But I’m not the only one who’s connecting the dots; so is Alito. During his media blitz, he’s said that he’ll consider retiring next year. That is a message to Republican voters: Alito is “on the ballot” this November. He’s telling voters that his seat could be up for grabs, should voters return Republicans to power in the Senate.

Alito’s statement should light a fire under Democratic voters in all 50 states. If Democrats retake the Senate, they can effectively block an Alito replacement to the Supreme Court, forcing him either to stay on the court or risk the Democrats’ holding the seat open through the 2028 presidential election cycle. That plan would, of course, require Democrats to have both a spine and a self-preservation instinct, which I’m not sure they do, but I’m trying to manifest by speaking it into the world. Making sure the guy who killed abortion rights doesn’t get a chance to handpick his successor is more than enough reason to vote for any Democrat, even if you’re a progressive who’s unimpressed by a squishy moderate—or a centrist scared by a true progressive.

The thing is, that’s not how liberal voters have traditionally behaved. In fact, the opposite’s been true. Alito’s out there making statements about his future precisely because he thinks dangling his potential retirement will light a fire under Republican voters.

Historically speaking, Alito’s right. Republican voters have long shown an ability to hold their noses and vote for Republican senators who will confirm reactionary justices. Democratic voters have consistently failed to appreciate how Supreme Court appointments and confirmations can scuttle the entire liberal agenda.

Think about it this way: Who is going to make more use of the Alito situation in the........

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