Alito and Roberts take stock as they near their third decade on the bench
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — As Chief Justice John Roberts and Justice Samuel Alito approach their two-decade milestones on the Supreme Court, they appear to be taking personal stock.
Twice in the past two weeks, Roberts, 70, has mused before audiences about retirement. The 75-year-old Alito wrote wistfully about Justice David Souter’s early retirement choice.
“I was happy that he was able to spend the last 16 years of his life in the surroundings he cherished living the kind of private life he preferred,” Alito said as the court announced the May 8 death of Souter, who left the bench in 2009 at the relatively young (for a justice) age of 69.
Roberts, at a Georgetown University Law Center appearance, recalled the 2009 day that Souter told him he was going to retire.
Souter told Roberts he wanted to return to his native New Hampshire, to trade, as Roberts put it, “white marble for White Mountains.” An avid reader, Souter also sought a more contemplative life.
“There aren’t many people who would have that kind of perspective,” Roberts said, “including myself.”
The end of the court’s annual session has traditionally been the season for Supreme Court retirement announcements and speculation. Thursday’s oral arguments involving Trump’s plan to end birthright citizenship marked the final public arguments of the current term; rulings will be issued through the end of June.
When CNN asked Alito last week about his own retirement plans, he declined to comment. In November, amid predictions from conservative activists about an impending Alito departure, the Wall Street Journal reported that people close to the justice said he had no plans to leave.
Since then, friends of Alito have told CNN his intentions do not appear to have changed. Factors he would weigh, they say, include the usual dynamic of personal health as well as his confidence in who the president might choose as a successor.
If Alito, Roberts or Justice Clarence Thomas, who will turn 77 next month, retire in the next four years, it would give President Donald Trump an opportunity to seal a deeper generational legacy on the Supreme Court.
At an appearance in Buffalo, New York, this month, Roberts dismissed questions about any imminent retirement but also referred to natural concerns an older justice has of becoming “a burden to the court.”
US District Judge Lawrence Vilardo, a friend of Roberts’ from their shared time at Harvard Law School, began the exchange by asking the chief justice, also a Buffalo native, if he ever thought about retiring.
“No,” Roberts said firmly. “I’m going out feet first.”
But then Roberts acknowledged that “if your health declines at all … if you recognize that you’re a burden to the court,” the answer could be different. (Roberts was hospitalized in 2020 after falling at a country club near his home. He had previously experienced seizures, and a court spokeswoman said at the time that his doctors ruled out seizure as the cause of the fall and a forehead injury.)
Roberts, who has looked healthy at recent public appearances, related to Vilardo a precautionary step he’d taken to avoid staying on the bench if he lost his faculties.
“I have very good friends,” he said, “and I sat down with them, and said, I want at the appropriate time – because you don’t always notice that you’re slipping – I want the two of you to tell me that it’s time to go.”
Roberts then quipped that there was a long pause, “and the two of them at once said, ‘It’s time.’”
Responding to a question about whether he enjoys the job, Roberts said, “It’s exciting to get up every morning and go into work.”
‘You want your bad luck to be good’
Roberts and Alito were selected in 2005 within a few months of each other by then-President George W. Bush. The appointments were made during a series of dramatic national events that included one of the most destructive hurricanes in history (Katrina) and the sudden death of a chief justice (William Rehnquist).
Since then, Roberts and Alito have transformed the modern Supreme Court. Chief Justice Roberts led the bench on a rightward path, bolstering presidential powers and diminishing individual rights.
Alito is likely best known for writing the court’s 2022 opinion that reversed Roe v. Wade and ended nearly half a century of abortion rights. Signing onto that opinion were Thomas and the three Trump appointees from his first term: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
At the recent Georgetown Law event, Roberts recalled his 2003 confirmation to a US appellate court and the 2005 high-court elevation, but not before he reminded Dean William Treanor of a 1992 episode. Then-President George H.W. Bush had nominated him to the US appellate court, but Roberts was blocked in the Senate.
“Some guy named Biden said, ‘Nah, let’s not give him a hearing,’” Roberts said, with a touch of the lingering sting. Joe Biden, who would later become president, was chairman of the Senate Judiciary Committee at the time.
In his public appearances, Roberts typically skips over that disappointment at age 37. But he used it last week as a lesson for the Georgetown students nearing graduation.
“Looking back on it – this is in terms of advice – you want your bad luck to be good,” Roberts said. “I think if I had been confirmed at that early age, when a vacancy came up on the (Supreme) Court, I probably would have had far too much baggage to be considered for it.” As it was, Roberts had a slim record of decisions from only two years on the appellate bench court before his Supreme Court nomination.
President George W. Bush’s selection of Roberts to be chief justice ultimately led to Bush’s choice of Alito for an associate justice post. The sequence of events and shifting nominations of 2005 was triggered by Justice Sandra Day O’Connor’s July retirement announcement as the annual session ended.
Bush announced that he would nominate Roberts for O’Connor’s associate justice seat. But before the Senate could hold its scheduled confirmation hearings for Roberts, Rehnquist died on September 3 and created a new opening.
Bush, struggling with the federal response to the devastating Hurricane Katrina at the time, quickly decided to switch Roberts to the new vacancy. Once Roberts was confirmed as chief justice, the president decided to replace O’Connor with his White House counsel, Harriet Miers.
But Miers, who had little constitutional law experience or record, withdrew her name a few weeks later, after being roundly criticized by conservative leaders, including former US appellate court Judge Robert Bork, who declared her nomination “a disaster on every level.”
Bush then settled on Alito, a federal appellate court judge whose conservative credentials were well-established.
In their early years in the Supreme Court, Alito and Roberts, with similar backgrounds and regard for the executive branch, regularly voted together. But in time, Alito moved further to the right, and Roberts, keeping an eye on the institutional standing of the court, tried to stake out the center.
‘Let’s say I’m complaining about my workplace’
Alito has been the subject of much of the speculation since the 2024 election regarding a new Trump opportunity for replace a justice. (Justices typically seek to retire when the sitting president shares their political party and would appoint a likeminded successor.)
Yet Alito, and even eldest justice Thomas, are younger than the usual Supreme Court retiree. Of the last dozen justices who left the bench since 1990, most were at least 80 years old. And more than half of the departures over the past 35 years were caused by death or illness. Two of the last four justices to leave the bench died while serving, Antonin Scalia in 2016 and Ruth Bader Ginsburg in 2020.
Alito remains an actively engaged, if aggravated jurist. During oral arguments, his questions can be as derisive as they are penetrating. In Thursday’s dispute over judge-imposed “nationwide injunctions” blocking Trump’s order to change birthright citizenship, Alito grumbled about those judges on the first rung of the three-tiered US judiciary.
“The practical problem is that there are 680 district court judges, and they are dedicated, and they are scholarly, and I’m not impugning their motives in any way. But, you know, sometimes they’re wrong, and all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right, and I can do whatever I want.”
Alito contended judges on multimember appellate courts, such as the Supreme Court, are “restrained by one’s colleagues, but the trial judge sitting in the trial judge’s courtroom is the monarch of that realm.”
With his own colleagues, Alito’s regular fuming appears a fact of court life, mainly accepted, sometimes even the source of amusement.
During one oral argument session last term, Alito raised a hypothetical scenario that apparently rang too true.
“Let’s say I’m complaining about my workplace. It’s cold. It’s set at 63 degrees. There isn’t any coffee machine. The boss is unfriendly. All my co-workers are obnoxious.”
Fellow justices begin chuckling. Thomas’ laughter was especially hearty. “I’m not …” Alito interjected, then stopped and declared, “Any resemblance to any living character is purely, purely accidental.”
Alito’s more recent remarks about Souter’s retreat to privacy recalls how Alito has bristled at public criticism of his rulings and certain off-bench activities.
Most recently, he drew scrutiny for taking a call from Trump in early January when a former law clerk was seeking a job in the new administration.
They talked just as the high court was about to consider a Trump effort to delay his sentencing in the New York “hush money” case that dated to Trump’s 2016 presidential campaign. Alito said in January that he did not discuss the case with Trump.
The bonus of another round of Supreme Court appointments would not be lost on Trump.
“I totally transformed the federal judiciary,” Trump said in 2023 as he was beginning his reelection bid. Referring to his Supreme Court appointments, he added, “I had three, and they’re gold.”
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