Amid concerns of a repeat scenario in which the late Justice Ruth Bader Ginsburg's refusal to retire when Democrats controlled the Senate resulted in the now-pronounced conservative shift at the U.S. Supreme Court, a growing number of far-left activists are urging current Justices Sonia Sotomayor and Elena Kagan to consider early retirement, as Politico reports.
Ian Millhiser of Vox also recently wrote in favor of Sotomayor and Kagan stepping down earlier than they may have expected, suggesting that with Democrats in charge of the White House as well as the Senate, now is the time to act.
Putting the situation in rather blunt terms, Millhiser declared, “We have now lived with the consequences of Ruth Bader Ginsburg's late-life arrogance for more than two years, and according to several progressive advocacy groups, the point is indeed well-taken.
Millhiser warned in particular that “[b]arring 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.”
“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,” he continued.
Slate senior legal affairs writer Mark Joseph Stern seemed to agree, writing on social media, as the Washington Examiner noted, Ian is indisputably correct about the political calculus here,” though he expressed regret about the situation, adding, “Sotomayor and Kagan are brilliant justices, and I'd be sad to see them go.”
Even so, Stern continued, “After 2025, Democrats may not hold the White House and the Senate for a decade+. This argument should be taken seriously.”
According to Politico, there are some Democrats in the Biden administration's inner circle who indicated – on condition of anonymity – that they believe Sotomayor, at least, should retire.
They did, however, note the potentially troublesome optics of publicly seeking the retirement of the first Latina to sit on the high court.
“It's absolutely a conversation that's being had. But the public conversations are very different from the behind-the-scenes conversations,” Molly Coleman, executive director of progressive legal reform group People's Parity Project told Politico.
Brian Fallon, the leader of Demand Justice, a progressive court reform group that aggressively prodded former Justice Stephen Breyer to retire, indicated that no such initiative will be launched with regard to Sotomayor.
Fallon told Politico, “I certainly understand the argument and think it is fair to ask the question, but we do not plan to mount any campaign on this like we did last year for Breyer.”
“No judge is above reproach, but as crisis-level situations go, this does not seem as acute as Breyer was,” Fallon added.
Though progressives harboring hopes that Kagan or Sotomayor – or both – will depart the court while Democrats have the power to nominate and confirm an ideologically suitable replacement remain reluctant to mount a real pressure campaign just yet, as 2024 gets closer, the changed political landscape may end up stoking enough fear to force their hands.