Justice Clarence Thomas will likely resign from the Supreme Court if Donald Trump is elected president, according to legal experts.
Anthony V. Alfieri, a law professor at the University of Miami, told Newsweek that Thomas—who was appointed to the court in 1991 after being nominated by Republican President George H.W. Bush—would resign to allow Trump to nominate a younger conservative judge.
"In the event that former President Trump is reelected in November, both Justice Thomas' age and presumed commitment to preserving his 34-year legacy ... raise the likelihood that he will resign not only to pursue other interests, such as teaching, travel and lecturing, but also to escape the harsh light of ongoing criticism and investigation of his conduct on and off the court."
Thomas, 76, has not made any clear indication of whether he will resign. Recently, he has come under intense criticism over his acceptance of luxury holidays paid for by the billionaire Harlan Crow and other donors, and he has even faced calls for his impeachment.
In April, The Washington Post reported that the average retirement age from the Supreme Court between 1971 and 2006 was 78.7 years old. However, it noted that Justice John Paul Stevens retired in 2010 at the age of 90.
The average tenure of all U.S. Supreme Court justices is about 15 years, the outlet said—though tenures have grown much longer in recent decades. "Since 1970, the average tenure of a justice has been close to 28 years," The Post reported.
Stephen Gillers, a law professor at New York University, told Newsweek that Thomas would not resign until he was sure a conservative would replace him.
"Thomas will not resign unless Trump is in the White House and the Republicans control the Senate. Even then, he might prefer to remain because we know his position has come with a great deal of free and luxurious 'personal hospitality," he said.
Gillers believed Republican donors could prepare a retirement package for Thomas, such is the importance of his resignation.
"Others may financially encourage Thomas to resign in order to lock in a conservative successor, who can then sit for the next 40 years," he said.
Gillers added that Thomas and Justice Samuel Alito, 74, may have only a two-year resignation window if Trump is elected, as Democrats—if they lose the Senate in 2024—could win it back in 2026 and refuse to accept a conservative Supreme Court appointment.
He said: "If the Democrats lose control of the Senate, but then regain control in 2026, no Trump nominee will be confirmed.
"No one can predict who the next president will be in 2028 or which party will have a Senate majority after 2026.
"So from the point of view of those who want to keep the court conservative, Thomas, and also Alito, should resign before the summer of 2026 if the Republicans win the White House and the Senate this Election Day."
Gillers believed Republicans were seeking to avoid a Ruth Bader Ginsburg scenario.
Ginsburg, a Supreme Court justice nominated by Democratic President Bill Clinton in 1993, refused the Democratic Party's entreaties to resign during the eight years of Barack Obama's presidency, which ended in 2017.
In September 2020, Ginsburg died at the age of 87, less than two months before a presidential election—allowing Obama's Republican successor to nominate her replacement on the court.
Gillers believed that, should Trump be elected, "much effort will be deployed" to persuade Thomas and Alito to resign.
"After all, neither would want to be remembered as a justice who 'hurt the cause' by staying on too long, which is how Ruth Ginsburg is sometimes remembered," he said.
Newsweek contacted the Trump campaign and the offices of Thomas and Alito for comment on Thursday.
In 2023, the investigative news site ProPublica alleged that Thomas threatened to resign in the 2000s if he didn't receive a salary increase.
Classified documents showed that Republican lawmakers sought to introduce an increase in Supreme Court salaries to stop him from resigning, the report said.
The legislation was not passed, but soon afterward, Thomas began receiving vacations and other gifts from wealthy Republican donors, the outlet reported.
Thomas is a few years shy of being the longest-serving Supreme Court justice, a record held by Justice William O. Douglas.
Douglas served for more than 36 years, from 1939 to 1975. If Vice President Kamala Harris, the Democratic presidential nominee, wins the 2024 election and Thomas decides not to resign while she's in office, he would break Douglas' record by the end of her first term.
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