Unlock the Publisher’s Digest for free
Roula Khalaf, editor of the FT, selects her favorite stories in this weekly newsletter.
When Barack Obama nominated Sonia Sotomayor to the U.S. Supreme Court in 2009, he said that when she “climbs those marble steps to assume her seat. . . America will have taken another important step towards realizing the ideal engraved above [the court’s] entry: Equal justice before the law”.
Fifteen years later, a debate has arisen over whether 69-year-old Sotomayor — the court’s first Hispanic justice — should retire before the 2024 general election to give U.S. President Joe Biden a chance to replace her with a more liberal young.
It started with an article in The Atlantic last month calling on Sotomayor to “leave now,” and gained steam this week after former MSNBC host Mehdi Hasan argued in an article in the Guardian that Sotomayor should leave while Democrats both hold the White House. and the Senate.
Some jurists agree. Given the prospect of Democrats losing the presidency and the upper house, “you’re talking about a very high potential risk of something that would be truly catastrophic from the liberal left’s perspective. . . it will happen,” said Paul Campos, a law professor at the University of Colorado at Boulder. By remaining on the bench, he argued, Sotomayor “would be taking an enormous risk.”
Some senior Democrats have hinted at the possible benefits of Sotomayor’s retirement, though they stopped short of calling on her to do so.
Richard Blumenthal, the 78-year-old Democratic senator from Connecticut, told NBC this week that Sotomayor was a “fully functioning justice.” But the justices must also “keep in mind the broader national and public interest in ensuring that the court looks and thinks like America,” he said, adding: “the cemeteries are full of indispensable people, including us in this body.”
The move would not shake the High Court’s 6-3 ideological split between conservative and liberal justices. But replacing the oldest member of the liberal wing would consolidate its numbers against a conservative majority, half of whom are 59 or younger.
Democratic Sen. Sheldon Whitehouse, 68, told NBC he “will not join any calls” for Sotomayor to retire. But he warned that if the high court was split 7-2, “it would go from a captured court to a full MAGA court.”
Other Democrats have refused to intervene publicly, including the White House. Karine Jean-Pierre, the White House press secretary, said this week that these are “personal decisions” for judges to make.
The death of liberal Justice Ruth Bader Ginsburg during the final months of Donald Trump’s presidency, which allowed him to nominate conservative Amy Coney Barrett, remains fresh in Democrats’ minds. Ginsburg ignored calls for retirement during Obama’s presidency for years.
“I certainly think that if Justice Ginsburg had to do it over again, she might have reconsidered her confidence in her own health,” Whitehouse told NBC.
The cases of Ginsburg, who died at the age of 87 from pancreatic cancer, and Sotomayor, who is not yet 70 and whose main health condition is diabetes, are very different. Some judges have served well into their 80s: Oliver Wendell Holmes and John Paul Stevens were both 90 when they resigned.
But the consequences of Ginsburg’s death and the increasingly conservative orientation of the court under the three conservative justices installed during the Trump presidency – which led to decisions such as the reversal of Roe vs. Wade, the 1973 ruling that had established the right constitutional abortion – have increased Democrats’ concerns about the future of the court.
Biden and his allies often talk about the successful 2022 nomination of Ketanji Brown Jackson as the first Black female justice. It’s unclear, however, whether Biden and congressional Democrats would want an election-year push in Congress to confirm an additional justice to replace Sotomayor.
Sotomayor’s retirement calls are also symptomatic of anxiety among Democrats about Biden’s chances in the general election. Trump, the presumptive Republican nominee, is slightly ahead of Biden in the national polling average published by RealClearPolitics.com, and is leading the polling averages of most major battleground states.
Even if Biden wins reelection but Democrats lose the Senate – which is tasked with confirming nominees to the Supreme Court – it is not clear he would be able to install a new liberal justice. Depending on the margin of a possible Republican majority in the Senate, Biden would be forced to choose a centrist to appease Republicans, or they might refuse to consider his nominee at all.
“It seems even more urgent” for Democrats “who would like to see Biden take another bite of the apple,” said Barbara Perry, a Supreme Court and presidential scholar at the University of Virginia.
The issue also seems “raw,” he added, after Senate Republican leader Mitch McConnell blocked Obama from nominating Merrick Garland to replace arch-conservative Antonin Scalia before the 2016 election, allowing Trump to fill that seat when he would have took office months later.
If Trump wins the 2024 election, he may have a chance to strengthen the conservative wing once again. Clarence Thomas is 75, Samuel Alito is 74, and Chief Justice John Roberts is 69.
It’s not the first time a Supreme Court justice has faced calls to resign: More recently, progressive groups publicly urged Stephen Breyer to retire so Biden could fill his seat.
But Perry argued that while it was politically appropriate to weigh judges’ ages ahead of the presidential election, he found the pressure on Sotomayor “personally repugnant.” Telling the court’s first Latino judge “here’s your hat, what’s your hurry?” it was “very inappropriate,” he added.