Democrats have a lot of criticisms of the majority-conservative Supreme Court these days. Recently, however, the targets of scrutiny surprisingly include liberal Justices Sonia Sotomayor and Elena Kagan.
Some on the political left have called on the two justices to retire to be replaced with younger liberal justices while President Joe Biden and a democratic Senate majority continue to hold power, placing them in a position to successfully appoint a liberal justice.
Sotomayor, 68, was appointed in 2009 by President Barack Obama, followed a year later by Kagan, 62. Sotomayor’s health came into the spotlight during the pandemic when she took extra precautions to work remotely due to her diabetes as other justices came back into the Supreme Court.
Ian Millhiser, a progressive correspondent with Vox, wrote an article advocating that the justices retire.
Millhiser called back to Justice Ruth Bader Ginsburg, who chose to not retire during Obama’s presidency, despite many calls by Democrats at the time. Ginsburg rejected those calls and died in 2020. President Donald Trump replaced her with conservative Justice Amy Coney Barrett.
“We have now lived with the consequences of Ruth Bader Ginsburg’s late-life arrogance for more than two years,” Millhiser wrote. “Now, eight years later, the question arises: Should Justices Sonia Sotomayor and Elena Kagan, 68 and 62, respectively, do what Ginsburg would not?”
Millhiser emphasized that the stakes are higher than ever before because Republicans will likely retake the Senate.
Because each state has two senators regardless of its population, rural states have significantly more representation in the Senate per person than more populous states. Republicans dominate in rural places and experts believe that trend could maintain Republican control of the Senate.
Millhiser even said that he fears that the Democrats could be holding the Senate for the last time in the foreseeable future.
“If the question was, ‘Do I think Sotomayor and Kagan are going to be able to survive another 10 years?’ I mean, probably,” Millhiser said. “But there may not be another chance for the Democrats to control the presidency and the Senate ever again, at least within their lifetimes.”
Peter Shamshiri, a lawyer and host of the 5-4 podcast, which is progressive and highly critical of the Supreme Court, has made similar arguments. Shamshiri referred back to Justice Stephen Breyer’s retirement last year, with Justice Ketanji Brown Jackson filling his spot.
Breyer, who was 83 at the time, was replaced by a much younger jurist in Jackson, who was 51, though Shamshiri said it was not entirely of Breyer’s “own volition.”
“It followed a lengthy campaign of public pressure from the left, with many eager for Breyer to allow President Joe Biden the opportunity to replace him with a younger liberal justice,” Shamshiri wrote.
For both Millhiser and Shamshiri, the calls on Sotomayor and Kagan are far from a judgment on their work. Both consider them to be strong liberal justices with work they celebrate. Shamshiri regards Sotomayor as the “clearest liberal voice on the Court.”
“Sotomayor is a phenomenal jurist,” Shamshiri wrote. “She is a reliable liberal vote across every major issue, and a notably poignant writer on criminal justice matters, to give just one example.”
Kagan, though considered by many on the left to be more moderate, has been celebrated for her work in defending voting rights.
Millhiser said that defending the make-up of the Supreme Court is a newer political problem, as the institution has always been political, but has only recently become partisan.
For Millhiser, the party politics emanating onto the Supreme Court means that it should be a priority for Democrats to protect their interests by ensuring liberals are on the bench.
“You can tell how a judge is going to rule in the cases that everyone cares the most about based on whether they have a D or an R by their name,” Millhiser said. “But that’s the world we live in and until that problem is solved, I think that everyone involved in the judicial selection process—including the justices in terms of how they time their retirements—need to think strategically.”
What’s at stake in Millhiser and Shamshiri’s eyes? A vast array of civil rights and Democratic policies.
Since the conservative majority grew to six over the three liberal justices, Roe v. Wade has been overturned, administrative actions have been weakened and partisan political redistricting have been held up.
Millhiser says that losing more ground in the court could lead to even more Republican victories.
For other Democrats, however, the calls for Sotomayor’s and Kagan’s retirements are “offensive” and should not be happening.
Maria Echaveste, a law professor at UC Berkeley and former Deputy White House Chief of Staff for President Bill Clinton, said that the calls for retirement focus Democrats on the wrong issues. Rather than talking about replacing liberal justices, progressives should focus on turning out votes in elections and winning back the House, Echaveste said.
“I think that calling, even whispering, to have Sotomayor step down is just really wrong-headed. Speaking as a Democrat, there are so many things we should be paying attention to,” Echaveste said. “Calling for her to step down, and Kagan, creates a ruckus that diverts attention from other things we should be focused on because there will be infighting within the left, within Democrats.”
Echaveste also believes that the calls are premature and overly pessimistic. While there is a chance that Democrats could lose the Senate, going into elections with that attitude could only make results worse.
For Millhiser, however, preparing for the worst is the best idea. He agrees that Democrats might not lose the Senate indefinitely, but believes that there is a big enough chance to push back against more optimistic outlooks on the future of the Democratic party.
“Do you want to bet the country on that?” Millhiser said. “Going through life just assuming that the worst possible thing won’t happen is reckless.”
Echaveste also believes that calling on Sotomayor specifically to retire is bad politics for progressives. Sotomayor, who is the first and only Latina appointed to the highest court in the nation, represents a broken glass ceiling for countless jurists in the United States. Her celebrated record would be tarnished with premature calls for her retirement, Echaveste said.
“Plenty of people live longer. As the first Latina, the first Hispanic, on the Supreme Court, I just think a lot of Latinos would be like ‘Oh really?'” Echaveste said. “If you want that, then all you progressives, especially you white progressives, better join us in making sure that Biden appoints another Latina. And you know that’s not going to be politically easy to do.”
Millhiser agreed and said that he would expect Biden and Senate Democrats to make putting another Latina justice on the court a priority.
The offices of Justice Sotomayor and Justice Kagan both did not return requests for comment.
The calls for the liberal justices to retire are among many suggestions of how the tenure of Supreme Court justices should change.
Jeffrey Fisher, a law professor at Stanford University who has argued dozens of cases before the Supreme Court, proposed term limits for justices. On the Supreme Court, jurists serve an unlimited term until their voluntary retirement from the bench or, in some cases, their death.
Fisher said that 18 year terms would allow the court to cycle through more justices and have a court more representative of true public opinion. For the first 200 years of the Supreme Court’s existence, the average tenure of justices was less than 17 years.
Fisher said that term limits would allow more frequent turnover of the positions, which would reflect the electoral decisions of the public. Any given president would be more likely to have the chance to appoint a Supreme Court justice, Fisher said.
Imposing term limits, however, would likely face political hurdles.
“This proposal was originally made more from the right than the left,” Fisher said. “So it’s a nonpartisan proposal in theory and indeed over the years has had strong backing from people across the political spectrum.”
Given Republicans current 6-3 majority in the Supreme Court though, short-term advantages might prevent bipartisan support of the issue.
Fisher also said that there is debate about whether term limits could be imposed by statute or would require a constitutional amendment, which are notoriously difficult to pass.
Another law professor has a different solution. Brian Sheppard, a law professor at Seton Hall University, proposed offering justices buyouts to encourage earlier retirements.
Sheppard said that significant buyouts, likely reaching millions of dollars, could incentivize justices to leave their positions and allow for court turnover.
He emphasized that having justices have leeway to use their own opinions when deciding cases and that old age and long tenures on the court can impact those decisions.
“I think there’s a greater risk that your ideological commitments or your personal values will not so nearly reflect the values of the majority of American citizens,” Sheppard said.
While Sheppard said buyouts are not a faultless option, he said reform of the court presents a battle where people “pick their poison” between plans’ benefits and the chances of them being implemented.
Sheppard and Fisher agree that these reforms could bring much needed change to the court to reestablish its legitimacy. Neither reform is meant to bring about partisan balance on the bench, but rather to have the court closer to reflecting the thoughts of the American public.