Will Sotomayor or Kagan open a Supreme Court seat for the Democrats?


Perhaps the most surprising outcome of the 2022 election was that Democrats not only held the Senate, but increased their majority. We shouldn’t expect a divided Congress to pass any major new laws in the next two years, but that expanded margin matters on one front in particular: confirmation of judges.

Will that mean President Biden can appoint another Supreme Court justice? People probably shouldn’t hold their breath.

This is a major question for several reasons. The first is that Republicans were able to significantly overhaul both the nation’s highest court and the rest of the justice system during President Donald Trump’s four years in the White House, and Democrats would very much like to continue reclaiming the bench. . Another is that Senate Democrats face a very tough map in 2024, which means their window to do so could close relatively quickly, even if Biden (or another Democrat) wins the presidential election.

The best case scenario is that a position becomes available on the right flank of the court. But the oldest judge is Clarence Thomas, 74, who is still younger than most retired judges. And judges rarely retire when the opposing party can replace them.

With that environment in mind, some have begun to argue for the retirement of one of the Democratic-appointed justices — particularly senior liberal Justice Sonia Sotomayor, but potentially Elena Kagan as well. The idea is that they could be replaced by a younger judge, like Stephen G. Breyer was replaced by Ketanji Brown Jackson last year (and like Democrats wish they could with Ruth Bader Ginsburg). They could at least solidify the court’s three liberal niches for decades to come. Among those who have floated the idea are Vox and Demand Justice, which spearheaded the “Breyer Retire” effort (but signaled that it would not mount such a campaign in this case).

“The Democrats won’t have a realistic chance of securing a Senate majority until 2030 or 2032,” Ian Millhiser wrote for Vox. He added: “If Sotomayor and Kagan do not retire within the next two years, in other words, they could condemn the whole country to live under a 7-2 or even 8-1 court controlled by named persons. by an increasingly radicalized Republican Party. ”

There are a lot of assumptions in this argument; it all depends on who controls the White House, and a Senate that turns Republican in 2024 won’t necessarily stay that way for six or eight years. But the thing is, the stakes are high, given the court’s recent right turn.

The problem for those advocating this is that Sotomayor and Kagan would be extraordinarily young retirees for the Court.

Sotomayor is 68 and Kagan is only 62. Breyer, on the other hand, was 83 when he retired. The two would give up what could be decades more on the pitch, and they might as well tell each other that they’ll stick around long enough to secure a like-minded replacement at a later date, even if it’s years away. 2030.

They would also be much younger than the average retired judge. Over the past 100 years, the average age of about three dozen retired judges was over 75.

If you exclude those who resigned due to scandal (Abe Fortas) or major health issues (Charles E. Whitaker, Sherman Minton and Mahlon Pitney) or due to other government job opportunities ( which probably wouldn’t happen these days), the average retirement age rises to over 78.

Over the past 40 years, the average retirement age has been north of 80.

In fact, in the past 100 years, only one judge in his 60s has retired without one of these external factors pushing him in that direction: Potter Stewart, who retired in 1981 at age 66. Besides Stewart, the best recent precedent one can cite is David Souter retired at age 70 in 2009. (Souter was candid about his hatred of having to live in Washington as much as he did.)

And it’s not just relative youth. Sotomayor (13 years in the field) and Kagan (12) would also be among the least tenured retirees in modern history. Aside from the unusual cases mentioned above, no one has retired so soon after joining the court since 1942.

(Cases that were unrelated to health or scandal include Tom C. Clark, who retired due to a dispute over his son’s appointment as attorney general; Arthur Goldberg, who retired to become Ambassador to the United Nations, and James F. Byrnes, who retired after just over a year in the field to serve in important positions related to the World War II war effort. )

That doesn’t mean it can’t or won’t happen. These are unusual times, with the court swinging considerably to the right and the justices well aware of the blame some have placed on Ginsburg for it. Kagan is young as a judge, but she also seems disillusioned in some ways. Sotomayor turns 70 next summer – the same age Souter was when he retired – and has at least earned a full pension.

There is also a clear and demonstrated history of judges retiring with politics in mind. The last seven justices who retired did so when they could be replaced by the most like-minded political party, and Breyer even acknowledged that was a factor in his decision.

If Sotomayor or Kagan were to step down in the near future, it would certainly highlight the politicization of those vacancies — insofar as it’s not already patently obvious. Even more so than Breyer and barring a major health issue, it would be pretty obvious what such an unusually early retirement really was.


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