https://news.bloomberglaw.com/us-law-we ... t-concerns
Lydia Wheeler, Senior Reporter
- Some predecessors faced more public pressure
- Politics, health factor into timing of retirements
But the nation’s first Latina on the US Supreme Court has faced little public pressure from progressives to retire ahead of the November election in which Republicans could regain control of the White House, Senate—or both.
Progressives similarly felt uneasy calling for Ruth Bader Ginsburg to step aside while Barack Obama was in office. Some regretted that silence when her death from pancreatic cancer at 87 mere weeks before the 2020 election paved the way for a 6-3 conservative court.
As was the case with Ginsburg, a feminist icon, there is a sensitivity in pushing for the retirement of the first woman of color to serve on the Supreme Court, said Paul Collins, a legal studies and political science professor at the University of Massachusetts Amherst.
“The optics of that don’t look great in many progressive circles,” said Collins, who co-authored a book on the impacts of race and gender in Supreme Court confirmations.
Hard to Predict
The topic isn’t one many progressives necessarily want to talk about publicly though it is a conversation people are having, said Molly Coleman, executive director of the People’s Parity Project, a progressive group working to improve the legal system.
“We have seen the consequences of justices staying on the bench for too long, misreading the political winds, and certainly people are very aware of that and want to avoid a repeat of what happened with Justice Ginsburg,” she said.
But it’s complicated.
“We’ve created a situation with the Supreme Court where it’s so personal,” Coleman said. “It feels like an attack on an individual justice to suggest that they might be well-positioned to retire under the current administration.”
While there’s concern about appearing disrespectful to a trailblazing justice, Coleman said the Supreme Court has also become the ultimate policy-making body in the country.
“We have to be able to separate the personal regard that folks in this work have for Justice Sotomayor and think about what is in the best interest of our collective future,” she said.
Not everyone agrees that Sotomayor should leave the court, especially where she’s the third-oldest justice with the fourth-longest tenure, just to create a vacancy for a president who’s seeking reelection to serve until he’s 86.
Clarence Thomas will be 76 in June and Samuel Alito will be 74 in April. Chief Justice John Roberts turned 69 at the end of January and Justice Elena Kagan will be 64 next month. Sotomayor, the oldest liberal justice, turns 70 on June 25.
“I do think it is unfair to single her out when one, there are other people on the court who are older, and two, there’s a political climate that is not necessarily conducive to her being replaced with a person who is actually the president’s pick,” said Melissa Murray, a New York University law professor and co-host of “Strict Scrutiny,” a Supreme Court podcast.
At a University of California, Berkeley Law appearance in January, Sotomayor told the audience she’s “tired.” The cases are bigger and more demanding, and the court’s emergency docket is busy even during the summer break, she said.
A few weeks later, the advocacy group Fix the Court released a trove of documents it obtained from the US Marshals Service that showed Sotomayor traveled with a “medic” to Florida in 2018. It also appeared to show that a marshal traveling with her for protection on trips to Florida and Puerto Rico in 2021 brought medical supplies and gear with them.
But there doesn’t seem to be any real concern about Sotomayor’s health impacting her position on the court. The Obama appointee’ has been outspoken about living with a chronic illness, having been diagnosed with Type 1 diabetes at the age of 7.
“We all know she can do the job,” Coleman said. “The question is, is she going to want to do the job for another five, nine, who knows how many years?”
Studies disagree on whether the timing of Supreme Court retirements can be predicted by politics, according to Christine Chabot, an associate professor at Marquette University Law School who wrote an article for the Utah Law Review on the timing and outcomes of these retirements.
There are several recent examples of justices departing early in the tenure of like-minded presidents, including David Souter in 2009, Anthony Kennedy in 2018, and Stephen Breyer in 2022. Breyer, now 85, was the target of a progressive campaign to pressure him into retirement so Biden could name his successor.
Health problems have prompted other retirements “at politically inopportune times,” and justices are often bad at predicting when a health issue will force them off the bench, Chabot said.
Since the mid-1950s, nine justices have left because of declining health, she said.
A severe stroke forced William Douglas to retire in 1975 under President Gerald Ford. Thurgood Marshall’s health prompted him to step down in 1991 while George H. W. Bush was president. For both Marshall and Douglas, their successors were chosen by Republicans with ideologies distant from their own.
In a 2014 interview with Elle magazine, Ginsburg said she intended to stay on the court for “as long as I can do the job full steam.”
“I think I’ll recognize when the time comes that I can’t any longer,” she said.
That fall, Democrats lost control of the Senate, allowing Republicans to block Obama’s nomination of Merrick Garland to succeed Justice Antonin Scalia, who died unexpectedly in 2016. Ginsburg died in September 2020 and Donald Trump replaced her with a conservative, Amy Coney Barrett.
Safer Path
Colorado Law Professor Paul Campos witnessed first-hand the criticisms levied at people who called for Ginsburg to retire in 2013 and 2014. He said he was accused of misogyny with people saying he wouldn’t ask a man to step down. Despite that blowback, the liberal critic of the left is now advocating the same for Sotomayor and he’s one of only a few people doing so.
“In a better political climate it wouldn’t be necessary,” said Campos, who called Sotomayor the greatest justice in the court’s history.
In addition to a tight presidential election this fall, there are several competitive Senate races in battleground states that threaten Democrats’ razor-thin Senate majority. Even if Biden wins reelection, Senate control could shift to Republicans and lead to another Garland situation, Campos said.
For those reasons, he thinks it would be public spirited for Sotomayor to retire.
“I would really hope that she seriously considers doing that no later than this summer, which is pretty much the latest she could do it and still ensure that her successor is confirmed,” he said.
From a purely political timing standpoint, if Sotomayor wanted to guarantee that she had a relatively more like-minded successor, “she should retire sooner rather than later,” Chabot said.
“We don’t know what will happen in the next four years,” she said. “I hope she’s in good health and hopefully she doesn’t have serious health concerns, but at 69 we simply don’t know and the safer path would be for her to retire now.”
That said, Chabot noted it’s unusual to expect a justice to retire in an election year to avoid it appearing the public is electing the next justice.