IMMEDIATE RELEASE 6 July 2026WASHINGTON MERRY-GO-ROUNDToday’s Events in Historical PerspectiveAmerica’s Longest-Running Column, Founded 1932How the midterms could neuter the CourtBy Douglas Cohn and Eleanor Clift WASHINGTON – A bizarre element to the midterm election is raising the possibility that one of several possibilities will result in gridlock at the Supreme Court.Rumors about Supreme Court Justice Samuel Alito’s retirement have persisted for months. The 76-year-old justice is not even the oldest on the Supreme Court. That distinction belongs to Clarence Thomas, who is 78 and has shown no inclination to leave the Court. Even so, all signals point to an Alito retirement, an event that will work in tandem with a set of political machinations in the selection of his replacement.First, if Democrats win the majority in the U.S. Senate in the November midterms – an outcome that four months from now looks possible – it would scramble Alito’s plans.He would almost certainly retire to allow the Republicans to rush through a President Trump nominee while they remain in the majority during the post-election lame duck session (senators elected in November do not take office until January). It would look like the rush to judgment that Majority Leader Mitch McConnell engineered when he got Amy Coney Barrett confirmed in record time.Barrett was whisked through the process after Justice Ruth Bader Ginsburg died in the September lead-up to the 2020 election, an election Republicans rightly feared was about to be won by the Democrats. And indeed, Democrat Joe Biden did win.The rushed confirmation of Barrett was unprecedented, as would be a rushed confirmation of a justice during the lame duck session, but unprecedented or not, a rushed confirmation would ensue.However, what happens if Alito hangs on, only to retire by choice or ailment in 2027 or 2028 while Democrats are in control of the Senate?Justice Alito is the beating heart of the conservative majority. He was the architect of the decision to overturn Roe v. Wade, the 1973 ruling that legalized abortion. He most recently anchored the Court’s decision to give Trump the authority to end Temporary Protective Status for Haitians, whose country Trump has ridiculed and whose immigrants he claimed during the 2024 election were eating cats and dogs. Alito said in writing the Court’s majority opinion that Trump’s statements were “not overly racial.”With Democrats in control of the Senate, Trump would have difficulty getting someone through to match Alito’s far-right perspective. Trump could modify his choice and possibly find enough Democratic senators to vote for his nominee. But Trump is not a modifier. More likely, following a couple of failed attempts, Trump would quit trying, and Alito’s seat on the Court would simply go unfilled.An empty seat would render the Court 5 to 3, with conservatives in the majority. But all it would take is one of Trump’s picks, say Amy Coney Barrett, to side with the liberals and the Court would be deadlocked 4 to 4 on some potentially key decisions.In this event, a lower court’s ruling that preceded an appeal to the Supreme Court would stand, thereby increasing the power of lower courts at the expense of a greatly diminished Supreme Court. This has happened in 2016 and 2017 when the Court tied 4-4 on several occasions following the death of Justice Antonin Scalia. It did not bode well for the Court. See Eleanor Clift’s book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).Twitter: @douglas_cohn© 2026 U.S. News Syndicate, IncDistributed by U.S. News Syndicate, Inc.END WASHINGTON MERRY-GO-ROUND
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