The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Should Justice Sotomayor Retire? Some People Think So.
Some liberals and progressives think Justice Sotomayor should retire this year to ensure a Democratic President names her replacement.
Back in January, Politico reported that some Democrats, including in the White House, were hoping Justice Sonia Sotomayor would retire this year.
Some Democrats close to the Biden administration and high-profile lawyers with past White House experience spoke to West Wing Playbook on condition of anonymity about their support for Sotomayor's retirement. But none would go on the record about it.
They worried that publicly calling for the first Latina justice to step down would appear gauche or insensitive. Privately, they say Sotomayor has provided an important liberal voice on the court, even as they concede that it would be smart for the party if she stepped down before the 2024 election. There is a firm belief that a Senate controlled by Republicans will simply not confirm a Biden-picked Court nominee should he run and win reelection. Should a vacancy occur under a Republican run Senate with a Republican in the White House, it could expand the current 6-3 conservative majority into an even more powerful 7-2 split.
But getting party leaders to speak more openly about those realities has been difficult.
Party leaders may be unwilling to broach the topic, but Josh Barro isn't. He writes:
Sonia Sotomayor will turn 70 this June. If she retires this year, Biden will nominate a young1 and reliably liberal judge to replace her. Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died. Confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the court — playing the kind of defense that is smart and prudent when your only hope of controlling the court again relies on both the timing of the deaths or retirements of conservative judges, plus not losing your grip on the three seats you already hold.
But if Sotomayor does not retire this year, we don't know when she will next be able to retire with a likely liberal replacement. It's possible that Democrats will retain the presidency and the Senate at this year's elections, in which case the insurance created by a Sotomayor retirement won't have been necessary. But if Democrats lose the presidency or the Senate this fall (or both) she'll need to stay on the court until the party once again controls both. That could be just a few years, or it could be a while — for example, Democrats have previously had to wait 14 years from 1995 to 2009, and 12 years from 1981 to 1993.2 In other words, if Sotomayor doesn't retire this year, she'll be making a bet that she will remain fit to serve through age 82 or 84 — and she'll be taking the whole Democratic Party coalition along with her in making that high-stakes bet.
If Democrats lose the bet, the court's 6-3 conservative majority will turn into a 7-2 majority at some point within the next decade. If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade. Democrats talk a lot about the importance of the Court and the damage that has been done since the court has swung in a more conservative direction, most obviously including the end of constitutional protections for abortion rights. So why aren't Democrats demanding Sotomayor's retirement?
Some may worry that Senate Republicans would seek to block the confirmation of a replacement. I doubt this is a serious threat. For one thing, Senate Republicans under Mitch McConnell demonstrated that a committed majority can get a nominee through. For another, were Sotomayor to announce plans to retire, she could make it contingent upon the confirmation of a replacement, and rescind her retirement should a replacement not get confirmed in time.
All this said, I doubt Justice Sotomayor will retire this year (not that I would be one to know). If she were to make such a decision, it would likely be communicated to the White House this spring, and announced at the end of the Supreme Court's term.
