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."

Comments

[Frank Drackman]

Ah C'mon Man!
Senescent J's a shoe-in for another term, and while you're getting rid of the 2d amendment, how about getting rid of the Twenty-Second one also? Two Terms?!?!?!? It's literally Pre-Nazi Germany! Who else but FDR in a 3rd term could have slap-japped the Japs back to Tokyo where they belonged??
So no hurry, in fact, probably won't be another Repubiclown POTUS this century, Changing Demographics, you see, Nate Silver says so anyway,

Frank

[Jacob Grimes]

Millhiser is a hack who should be ignored.

That being said, it's an incredibly stupid idea given how relatively young Kagan and Sotomayor are and incredibly insulting to the judges themselves to suggest they contribute nothing to the bench other than casting some yea or nay vote on a case based on its political consequences.

I mean, seriously, how do you think either of them would react if Millhiser suggested to them in person that they resign now because it would be good for Democrats?

[Mr. Bumble]

Why not include PB&J and make it a triple play?

[Bob from Ohio]

"malapportioned Senate that effectively gives extra representation to Republicans in small states"

A myth. The 10 smallest states split 10-10.

[MatthewSlyfield]

"The 10 smallest states split 10-10."

Wouldn't an even split in the 10 smallest states be 5-5 or are you counting individual Senate seats rather than states?

[Brett Bellmore]

Well, both ARE old enough that the proposal isn't TOTALLY ludicrous. That's about all I can say for it. And Brinton IS newly available, I suppose.

Seriously, are there enough "firsts" available out there who are comparably qualified? Because you know there's precisely zero chance this administration would nominate a straight white guy, unless maybe he was a cannibal or furry.

[bernard11]

Stupidest factoid-based argument ever.

How do the twelve smallest split, or the 17 smallest?

[Don Nico]

Amen.
While I think Sotomayor would not be a loss in this scheme, losing Kagan would lose one of the most intelligent jurists on SCOTUS.
All in all a very poor idea.

[Brett Bellmore]

Bernard, the entire complaint, really, has nothing to do with the particulars of which way this or that small state goes; They're a mixed bag that mostly are a wash in terms of partisan advantage.

It all comes down to California not having 12 Senators, really. Because it's a really big state that skews heavily Democratic.

[Krychek_2]

Brett, if it really were a mixed bag, Republicans wouldn't be so hostile to the idea of proportionate Senate representation. It may have been a mixed bag at other times in our history, but not now, and not for the foreseeable future.

[bevis the lumberjack]

If the number of “small states” however defined is approximately the same number on each side, how is that a stupid factoid argument? Seems to me that just throwing out that the apportionment of the Senate favors one side is the specious argument.

And of course Millhiser is notably partisan hack even in an industry filled with partisan hacks.

And this entire kerfuffle ignores the larger point that in the absence of this apportionment (and the EC) there wouldn’t even be a USA to argue over. So this entire discussion is a worthless alternative universe thing like a Star Trek episode.

[bernard11]

Whatever, Brett. BFD.

The fact remains, and that the problem relates heavily to CA doesn't change anything.

Your point is just as silly as the claim that Trump didn't really lose the popular vote, because the margin was in CA.

It seems impossible for you to understand or accept that voters in CA actually are American citizens, and there is no good reason they should be massively underrepresented in the Senate (or the EC).

For the umpteenth time, "California" is not a conscious entity, with a will of its own. It's an area defined by some lines on a map, and a lot of people live within those lines. They should not be politically penalized for that.

It's always bizarre when people say things like "We don't want California running things." California doesn't run anything. It just sits there, next to the Pacific Ocean.

But if there is a dispute to be settled via normal political processes, the idea that a California citizen should have less say-so than one in North Dakota is patently absurd. Indefensible. It's a major flaw in the Constitution.

[bevis the lumberjack]

Krychek it ain’t up to the Republicans. It’s up to the states that would lose representation and would have been essentially lured into the Union on a bait and switch.

You think Rhode Island is eager to give up a Senator to Texas?

[Longtobefree]

" . . . malapportioned Senate that effectively gives extra representation to Republicans in small states."

Last time I checked, each state gets two.
In what universe is that malapportioned?

[Bob from Ohio]

"are you counting individual Senate seats"

Yes. Montana and Maine are 1-1, rest are 2-0 for one party.

[kkoshkin]

Well I guess one “good reason” that CA is allegedly underrepresented in the Senate is that it is a state and the Constitution provides for each state to get two senators. Isn’t the basic compact setting up the entire government a good reason for the set-up of the government?

Texas is likewise underrepresented, but the Millhisers of the world don't seem to be too concerned about that.

[Bob from Ohio]

"patently absurd. Indefensible. "

Its totally defensible. We have a federal system, not a unitary state.

Population differences are reflected in the House.

"major flaw in the Constitution"

Its the only reason we have a Constitution. The smaller states in 1789 would never have joined a unitary state.

[bevis the lumberjack]

I’ve been in Texas since I was old enough to vote so I’m as oppressed by this as any Californian is. I’ve always just ignored that. Not that I am excited that it supposedly helps Team Red (assuming that’s even true). I imagine without knowing that any “advantage” has probably swung back and forth through time. And that’s the way it’s always been, so it is what it is.

Hey, Krychek, I live in the 2nd most populous state? Which small blue state is gonna give me my third Senator?

[Rossami]

Bernard asks "how do the twelve smallest split" "or the 17 smallest".

The answer pretty much doesn't matter. Here are the tallies starting from the bottom:
1 smallest - 2-0 favoring R (it's just Wyoming)
2 smallest - 2-2 (counting Vermont's independent as caucusing with Ds)
3 smallest - 4-2
4 smallest - 6-2
5 smallest - 8-2
7 smallest - 8-6
8 smallest - 9-7
9 smallest - 10-8
10 smallest - 10-10
11 smallest - 10-12
12 smallest - 11-13
13 smallest - 13-13
14 smallest - 15-13
15 smallest - 15-15
16 smallest - 17-15
17 smallest - 19-15
18 smallest - 21-15
19 smallest - 21-17
20 smallest - 23-17
21 smallest - 25-17
22 smallest - 25-19
23 smallest - 27-19
24 smallest - 27-21
25 smallest - 29-21
26 smallest - 31-21
27 smallest - 31-21
28 smallest - 35-21
29 smallest - 35-23
30 smallest - 35-25
31 smallest - 36-26
32 smallest - 36-28
33 smallest - 38-28
34 smallest - 40-28
35 smallest - 42-28
36 smallest - 42-30
37 smallest - 42-32
38 smallest - 42-34
39 smallest - 42-36
40 smallest - 42-38
41 smallest - 42-40
42 smallest - 44-40
43 smallest - 44-42
44 smallest - 45-43
45 smallest - 45-45
46 smallest - 46-46
47 smallest - 46-48
48 smallest - 48-48
49 smallest - 50-48
50 smallest - 50-50

The place with the greatest discrepancy is driven by the middle-sized states, not either the largest or the smallest.

[Rossami]

By the way, my count of senators by state comes from the current Senate (the 117th Congress), not the recent election results. But the overall point won't change either way. It's not the small states that swing Republican - it's mostly the middle states.

[Joe_dallas]

Don Nico 1 hour ago
"While I think Sotomayor would not be a loss in this scheme, losing Kagan would lose one of the most intelligent jurists on SCOTUS."

I have to agree with both comments -
Sotomayor showed her respect for constitutional law in Ricci and Shuttee.
Kagan while I disagree with her political philosophy, she is definitely qualified for SCOTUS and by far one of most intellectual on the court.

[bevis the lumberjack]

Nice.

Nos. 20 - 35 is substantially made up of states in the confederacy, which are now hardcore red but were in recent memory hard core blue. And some or all of them may swing back again someday. The

And I can hear people saying there’s no way it’ll ever do that, but in, say, 1965 they’d have very confidently made that predictable and been dead wrong.

[Krychek_2]

I am attempting to reply to Bevis the Lumberjack's comment above that begins "it ain't up to the Republicans" but the reply function appears not to be working.

Bevis, you are technically correct, but you're ignoring that federalism looks a lot different now than it did in 1789. If I'm Rhode Island, I know that it's in my best interest to have Democrats running things because they're going to enact policies, and send funding, more in keeping with my values. So in order to get that, I may very well be willing to give my my Senate advantage. I'd certainly think long and hard about it before I said no. The bottom line is that, posturing notwithstanding, everyone knows the current system favors conservatives; if it didn't, we wouldn't even be having this conversation.

You are also correct that without the EC and two senators per state the Constitution wouldn't have been ratified in the first place, but I don't think that argument gets you all that much. That was 230 years ago and times have changed. I once had a probate court toss out a will because it had been written 20 years before the decedent died and the judge found that there was no evidence that it would still represent her wishes 20 years later. I can't think of any other context in which a 230 year old contract would be taken seriously; go to Westlaw and do a search for "deadhand control" and see what pops up.

And please don't tell me to just get it amended; I'm looking for realistic solutions, not theoretical ones.

[Krychek_2]

Still can't get the reply function to work.

Bevis, those southern states that used to be hard core blue that are now hardcore red -- once the Democrats became the party of racial equality, all the Jim Crow voters switched parties. It's that simple. Instead of looking at the names of the parties, look at what they stand for. Essentially, the Democrats of 1950 are the Republicans of 2022.

[Josh R]

The place with the greatest discrepancy is driven by the middle-sized states, not either the largest or the smallest.

Using your figures (*), while there is no bias in the 10 smallest states, the next 10 second-smallest states are 13-7 GOP and then next 10 after that are 12-8 GOP. The 20 largest are 25-15 Dems.

(*) You have a 50-50 Senate, it's 51-49 counting Sanders, King and Sinema as Dems

[bevis the lumberjack]

He explicitly said he based it on the current make up of the Senate.

[bevis the lumberjack]

Krychek, there is no realistic solution that you’re going to accept. You want your side to win no matter what and whatever it takes is whatever it takes. Most, if not all, of these states aren’t going to give up representation to make the progressives happy. But it is nice if you to volunteer Rhode Island to give us their Senate seat.

And like I said, back in’65 you’d have been saying those seats will never change and you’d have been wrong. And your explanation for it is simplistic. The Dems “became the party of racial equality” in the 60s but the real movement by those states didn’t happen for 20 years, until Reagan. Obviously it was a lot more complicated than you understand.

Expecting states to voluntarily give away power to people they oppose is a fool’s errand, but you and Millhiser can knock yourselves out trying.

[Dan Schiavetta]

What Democrats have to realize is that they are now in a gunfight and can't keep bringing a knife to it. A Democratic Senate will confirm a Republican nominee but a Republican Senate will no longer confirm a Democratic nominee. Some cold hardball calculation is now needed.

[Bob from Ohio]

"I once had a probate court toss out a will because it had been written 20 years before the decedent died and the judge found that there was no evidence that it would still represent her wishes 20 years later"

Just because that judge was stupid is no reason to toss out the Constitution.

There is an amendment procedure, use it. You can amend it to eliminate the equal suffrage clause and then eliminate the senate. RI and Vermont can lead the effort.

[Bob from Ohio]

"Democratic Senate will confirm a Republican nominee"

There has not been a GOP president and a Dem senate for 16 years. So, your confidence is badly misplaced.

[Bob from Ohio]

"all the Jim Crow voters switched parties"

No, they mostly died. Its over 50 years, a voting age adult in 1964 would have been born no later than 1943 so the youngest is 80.

Southern states vote GOP now because they like the GOP, not because of Jim Crow. Get some new arguments.

[Don Nico]

Bernard,
"It just sits there, next to the Pacific Ocean."
That comment is disingenuous. The matter is not just the number of members of Congress.
California does seek to influence the national economic and political agenda through questionable (with respect to the Commerce Clause) policies such as forbidding all but new BEV cars in 2035. Mandating stricter than national emissions standards. etc. The impact of overrepresenting the national economy is huge.

[bernard11]

If the number of “small states” however defined is approximately the same number on each side, how is that a stupid factoid argument? Seems to me that just throwing out that the apportionment of the Senate favors one side is the specious argument.

Because the whole idea of talking just in terms of "small states" when discussing this is silly. There is not one group of small states with the same population. State populations vary.

Saying the 10 smallest are equally divided means nothing. It's just cherry-picking some data and making a meaningless point. If we had three states with populations of 1 million, 2 million, and 20 million, and the two smaller ones were represented by different parties, would it be reasonable to say the big state had no legitimate complaint about being under-represented?

[bernard11]

That comment is disingenuous. The matter is not just the number of members of Congress.
California does seek to influence the national economic and political agenda through questionable (with respect to the Commerce Clause) policies such as forbidding all but new BEV cars in 2035. Mandating stricter than national emissions standards. etc. The impact of overrepresenting the national economy is huge.

Californians, Don, not California. And are we now against federalism when we don't like the consequences? Californians make rules for Californians.

And do other states not "seek to influence the national economic and political agenda?" Seems to me they do.

Plus, I don't know what you mean by "overrepresenting the national economy." How do we know their policies don't have more widespread support, but can't be implemented nationally because of our dysfunctional politics. After all, at least for emissions, several states, including NY, VA, and PA have decided to adopt California's standards.

[bernard11]

Well I guess one “good reason” that CA is allegedly underrepresented in the Senate is that it is a state and the Constitution provides for each state to get two senators.

I understand that that's what the Constitution requires. As I said, I consider it a flaw, as I do the EC.

[bernard11]

The answer pretty much doesn’t matter. Here are the tallies starting from the bottom:

Thanks, Rossami, but my essential point is that grouping states by size for this discussion is foolish. You should look at populations. Last time I did that, not long ago, Democrats (including King) in the Senate represented 56% of the population, but held only 50 seats.

[Josh R]

He explicitly said he based it on the current make up of the Senate.

OK.

If the number of “small states” however defined is approximately the same number on each side

It isn't. The incoming Senate is 26-14 Dems in states 1-20, 25-15 GOP in states 21-40, and 10-10 in states 41-50. That's a clear small-state bias towards the GOP.

[Davy C]

If a justice retires specifically so that they can be replaced with an unknown person supported by a particular political party, then they're so partisan that they shouldn't have been on the bench in the first place.

Yes, I know it's happened on both sides.

[bevis the lumberjack]

It’s ridiculous to call it a flaw when it was designed into the system for a specific purpose, particularly when without that element the system would never been successfully completed.

I live in a state that’s underrepresented to the same extent that California is. There’s no complaining about it here at all. It’s an element that has existed for almost 250 years. We’re not getting cheated by it/them, nor or you, because with it you’re a helluva lot better off than you would have been without it.

This is similar to fossil fuels - people bitch about the problems with zero recognition of the long term benefits they experienced.

[Josh R]

If instead of state population, we look at the percent of the population that lives in urban areas, the ten lowest are 15-5 GOP, the next ten lowest are 17-3 GOP, the middle ten are spilt 10-10, the next ten are 17-3 Dems and the top ten are 16-4 Dems. That's the main effect. Not surprisingly, smaller states tend to be less urban (with notable exceptions such as Hawaii, Delaware and Rhode Island).

[Don Nico]

Bernard,
"I don’t know what you mean by “overrepresenting the national economy."
CA has an outsized influence on the national economy because it has produces certain critical goods at a larger fraction than its 15% population share.
Your saying "Californians" does not cut it, certainly not in a one party state. I did not say I was against federalism; I objected to your claim of CA state passivity, "just sitting by the sea.
That California tries to force national standards despite the obvious interference with interstate commerce is also activist trait rather than your passive "sitting by the sea."
Finally I doubt that Gavin Newsom and his allies do not try purposefully to have a deep national influence in the way that Brett imputes to the CA Dem Party machine.

[Rossami]

These arguments in favor of pure majoritarianism are great - so long as you are always in the majority. Life in a pure majoritarianism really sucks when you are in the minority. And here's the important part - you will always be in the minority about something. If not today, then the next time the wheel comes around.

The bicameral system we have with balanced majoritarian (the House) and state-focused (the Senate) representation may not be perfect but it's a damn sight better than any of the alternatives that have been offered.

[Brett Bellmore]

"For the umpteenth time, “California” is not a conscious entity, with a will of its own. It’s an area defined by some lines on a map, and a lot of people live within those lines. They should not be politically penalized for that."

Your problem is that people in the rest of the country see what a mess the people living inside those lines are making of things, and don't really want to do anything to help them make a similar mess of the rest of the country.

If California were visibly well run, it might be different. Instead it looks like a case study in what Democrats will do if they lack any effective opposition to restrain them.

I know that from a political theory standpoint that looks like a lousy defense of the system as it is, but there you are: The mess that California has become makes your desire for Senate 'reform' crazy unlikely to ever go anywhere.

[Sarcastr0]

The right has demonized California, and they do some dumb stuff, but no it's not a hellscape. People like it there! While the net flux is outward, it's not like folks are leaving in droves.

Similarly, Chicago is not a war-torn gang war out of some 1990s dystopia movie.

Both the right and the left like to lump people together your California collective guilt is as dumb as those wanting to saw off Florida and let if float off because they don't like their governor. Or let the South secede. As though they're not a vital part of the union.

People are just people, no matter where they are from. There are plenty of Republicans in Cali.

And I'm not even super concerned about the Senate. But the collective dislike of random people based just on where they live is just bad.

[Krychek_2]

No, Bevis, it's not that I want my side to win no matter what. It's that if my side loses I want it to have been a fair fight. It's one thing to lose fair and square; it's another thing to lose when you know the deck was stacked. I live in Florida where Ron DeSantis was just re-elected; I'm not happy about it but that's what the voters did so I accept the results.

And Rossami, I understand that under a majoritarian system my side would not be in power forever. But same as what I just told Bevis: if that's what the voters do, then that's what the voters do, but let us have fair and impartial rules of engagement. If my side loses because the deck was stacked, it's no real consolation to say that some day in the future it will be stacked in my favor.

[bevis the lumberjack]

This. My wife and I have vacationed in California more than anywhere else and they’re just people. Every so often someone reacts…..sort of uncomfortably when we say we’re from Texas, but almost universally we’re just normal decent people dealing with other normal decent people.

Putting people in boxes based on where they live (or most any other single identifier) is just stupid, lazy thinking. I live in Texas and have never worn cowboy boots or worn (or even carried) a sidearm. Some people I know have CCLs but I never talk to anybody at, say, a party that is carrying. Just like out there, just decent people trying to coexist with decent people.

[bevis the lumberjack]

I didn’t make it clear, but my most recent response was to Sarcastro.

As to Krychek, it the election was conducted according to pre-established rules then it was a fair fight, unless you’re a sore loser like Trump or Abrams. There is no stacking of the deck involved. There’s a reason for this design and I’ve always liked it, regardless of who wins and loses. It’s even more important now with both parties dominated by extremist fruitcakes.

[Rev. Arthur L. Kirkland]

Expecting states to voluntarily give away power to people they oppose is a fool’s errand, but you and Millhiser can knock yourselves out trying.

I expect better Americans to address the issue of our system's structural amplification of backwater votes -- quite effectively -- by some combination of admission of states (D.C., Puerto Rico, Pacific Islands); enlargement of the House (with it, the Electoral College); and enlargement of the Supreme Court.

[Free Exercise]

“There is an amendment procedure, use it. You can amend it to eliminate the equal suffrage clause and then eliminate the senate. RI and Vermont can lead the effort.”

Actually, the Amendment Clause to Constitution explicitly prohibits that: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Those whining about equal representation in the Senate should give it a rest.

If control of the Senate is so important to some, their favored political party need only run with candidates & issues sufficiently popular to prevail in the majority of the states. Not that hard - major American political parties have been doing so for centuries. What is laughable is those on the left insisting they should be able to obtain a Senate majority without achieving that level of popularity, because they are, in their own minds, so deserving.

[bevis the lumberjack]

I expect unicorns to sprinkle magic dust on me and make me 25 again, but the bastards never get around to it. Sometimes expectations just lead to disappointment.

[Krychek_2]

Bevis, the idea that because something is done according to established rules, that that makes it fair, is nonsense. If the established rule were that half of all Republican votes won't be counted, I doubt you would think it was a fair rule.

And while I think there are more GOP fruitcakes than Democratic ones, I do agree with you that fruitcakes exist in both parties. Which is why it's even more important that neither party's fruitcakes be given a procedural advantage. Let them compete on a level playing field.

And at the end of the day, I agree with you that people are just people no matter where they live. There are good and bad people in red states and in blue states, and for that matter in both parties. Which is why it makes no sense to me that the state in which someone lives should determine how much weight his vote carries.

[Intelligent Mr Toad]

Sotomayor definitely should retire. She has single-digit-age-onset type-1 diabetes, and she's almost 70. She has taken care of herself - been conscientious about diet, exercise, and consistent, correctly-timed insulin shots, but the benefits are that she hasn't already died, or lost a leg, or gone blind. These patients don't usually live much past 70. If she stays on, she'll be putting us at very high risk for another RBG-type replacement.

[Brett Bellmore]

As I said above, given their ages, it's not a totally crazy proposal, especially in regards to Sotomayor.

The problem is the rather stringent selection criteria. It would be one thing if the only thing they were looking for was a competent left-wing jurist. That's not terribly restrictive, the legal community skews left to begin with. They could surely find somebody well suited to the job. Maybe Sri Srinivasan. 😉

But they're not going to be content with ideology and competence, there are a huge number of boxes to check. Sotomayor is a woman, and so can't be replaced with a man. She's a POC, (Latinos count as such so long as they're not conservative.) and so can't be replaced with a white. But straight female POC has been done already, they need a fresh "first" fix, the diversity monkey on their backs must be getting restless by now.

Just requiring a left-wing non-white woman eliminates something like 97% of the potential candidates. Adding that they have to be novel in some other regard practically zeros out the candidate pool.

[Goju]

I love this conversation. Didn't someone once say something about Obama judges and Trump judges? And everyone applauded it? Obviously someone completely unfamiliar with the Court and it's practices. /sarc.

[Gandydancer]

If they've got the votes to replace these Justices with partisan hacks a few decades younger it makes perfect sense for the Dems to do it. Persuading Kagan & the Wise Latina to step down is the hard part. See, of course, RBG.