Some liberals are beginning to publically voice the opinion that 69-year old Supreme Court Justice Sonia Sotomayor should retire before the 2024 election to open up her seat for a younger Democratic appointee.
Enabling President Joe Biden to appoint a younger liberal justice now would head-off the possibility of a 7-2 conservative majority, should former President Donald Trump return to the White House in 2024, multiple liberal columnists argued this week. The arguments echo similar calls from early last year, when Politico reported some Democrats close to the Biden administration are of the same opinion, though they remained unwilling to suggest publicly that the “first Latina justice” should step down to secure her seat for the party.
“You’re worried about putting control of the court completely out of reach for more than a generation, but you can’t criticize an official who’s putting your entire policy project at risk because she is Hispanic?” Republican-turned-Democrat writer Josh Borro wrote Monday. “If this is how the Democratic Party operates, it deserves to lose.”
Weeks before the 2020 election, when the late Justice Ruth Bader Ginsburg’s death left a vacancy on the court, the Senate was able to confirm Trump’s nominee, Justice Amy Coney Barrett, along party lines. Ginsburg had declined to retire during Obama’s presidency — and many Democrats are afraid of a repeat.
In 2021, Democrats urged former Justice Stephen Breyer to retire so Biden could “appoint the first-ever Black woman” to the Supreme Court. Breyer retired in June 2022 at 83 years old, allowing Biden to appoint Justice Ketanji Brown Jackson.
Brian Fallon, former Executive Director of Demand Justice, which led the charge against Breyer with a petition and billboard truck, told Politico last year that his organization doesn’t have the same thing in mind for Sotomayor.
“No judge is above reproach, but as crisis-level situations go, this does not seem as acute as Breyer was, or even as urgent a problem as, say, the Democrats’ ongoing refusal to get rid of blue slips,” Fallon told the outlet, while noting “it is fair to ask the question” about her retirement.
Since then, concerns about Sotomayor’s health have made headlines. Sotomayor made two trips in 2018 accompanied by a medic and had four trips in 2021 that mentioned “medical” gear or supplies, according to U.S. Marshals Service records reported in February by left-leaning court watch group Fix the Court.
“Fifteen years was the average tenure for … [U.S.] justices for the first 150 years of our republic,” Fix the Court executive director Gabe Roth told the Huffington Post in February. “In the last 55 years, that number has now doubled. But the idea that Justice Sotomayor might be considering staying on the court until, I don’t know, Naomi Biden [the president’s granddaughter] is president, is probably not something a lot of folks would want to see.”
During comments at the University of California, Berkeley School of Law in January, Sotomayor mentioned feeling “tired” due to the demanding current caseload, Bloomberg Law reported.
Conservatives have secured major victories over the past two terms with decisions rejecting affirmative action in higher education, protecting religious liberty, most notably, overturning Roe v. Wade. This term, the court faces controversial questions on abortion pills, censorship, the Second Amendment and former President Donald Trump.
“I live in frustration,” Sotomayor said. “Every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting.”
As Borro made the case, the next time Democrats will have a shot at appointing a new justice may be further away than a single election cycle — it could be multiple, meaning they are “making a bet that she will remain fit to serve through age 82 or 84.”
“If Democrats lose the bet, the court’s 6-3 conservative majority will turn into a 7-2 majority at some point within the next decade,” he wrote. “If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade.”
New York Magazine columnist Jonathan Chait likewise wrote Thursday that Sotomayor — “69 years old and a diabetic former chain-smoker” — should acknowledge the “partisan nature” of her position and step down soon, “when she can be replaced with a like-minded justice, rather than gamble.”
University of Colorado Boulder law professor Paul Campos, who argued for Breyer’s retirement in 2021 and Sotomayor’s retirement in 2022, reiterated on Wednesday his support for her stepping down.
“The ongoing radicalization of the Republican party means that it will be close to impossible for Joe Biden, if he’s re-elected, to fill a vacancy on the Court if Republicans have even a two or three seat majority in the Senate,” he wrote.
Journalist Walt Hickey wrote for Business Insider in September that Biden’s age should be less of a concern for Democrats than the ages of Justices Elena Kagan and Sotomayor.
“It sure does seem like there is a growing chorus of liberal pundits calling for Justice Sotomayor to retire,” Carrie Severino, president of the conservative legal advocacy group JCN, told the Daily Caller News Foundation. “It makes you wonder whether the Left is going to try to bully her into retiring, like they did with Justice Breyer.”
Biden has been lagging in the polls, which consistently show voters believe they were better off under the Trump administration. A recent New York Times and Siena College poll recorded Trump leading by five percentage points and revealed 10% of former Biden voters now back Trump.
The Real Clear Politics average sets Trump’s lead in a hypothetical matchup with Biden at 1.8%.
Demand Justice and the Supreme Court’s public information office did not respond to requests for comment.
Katelynn Richardson on March 9, 2024
