The Volokh Conspiracy

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Supreme Court

Should Justices Sotomayor and Kagan Retire?

A progressive makes the case the two justices should step down within the next two years so that President Biden may appoint their successors with a Democratic Senate.


Over at Vox, Ian Millhiser argues that Justices Sonia Sotomayor and Elena Kagan should retire now so that they can be replaced while Democrats control both the White House and the U.S. Senate.  Failing to do so, he warns, risks that they could be replaced by a Republican President, as happened when Justice Ruth Bader Ginsburg died, leading to Donald Trump appointing Justice Amy Coney Barrett to Ginsburg's seat.

Both justices are much younger than Ginsburg was in 2014. There are no reports that either is in ill health (although Sotomayor has diabetes, she's managed that condition nearly her entire life). Realistically, both justices could probably look forward to a decade or more of judicial service if they desire it. But even a mighty Supreme Court justice cannot overcome the merciless math facing Democrats in a malapportioned Senate that effectively gives extra representation to Republicans in small states.

Barring extraordinary events, Democrats will control the White House and the Senate for the next two years. They are unlikely to control it for longer than that. The 2024 Senate map is so brutal for Democrats that they would likely need to win a landslide in the national popular vote just to break even. Unless they stanch the damage then, some forecasts suggest that Democrats won't have a realistic shot at a Senate majority until 2030 or 2032. And even those forecasts may be too optimistic for Democrats.

If Sotomayor and Kagan do not retire within the next two years, in other words, they could doom the entire country to live under a 7–2 or even an 8–1 Court controlled by an increasingly radicalized Republican Party's appointees.

Millhiser acknowledges that there are benefits to experience and longevity on the bench. Longer serving justices may be more influential than their more junior colleagues for a variety of reasons, including the ability to control opinion assignments and the cultivation of relationships within the Court. But Millhiser is skeptical that such concerns should carry the day here as "at some point, the advantages of longevity and experience must yield not just to the Senate's unforgiving math, but to the mathematics of the Court itself. In the Supreme Court, the only number that truly matters is five."