The calls to step down come from both the left and center—amplified by law professors, scholarly legal journals, and anti-Trump pundits—warning about the risks to the Supreme Court and the country if Justice Sonia Sotomayor isn’t replaced while there’s still a Democrat in the White House and a Senate in Democratic hands.
She’s only 69, young by today’s standards, but the memory is still fresh of the late Justice Ruth Bader Ginsburg lingering well into her 80s and then dying weeks before the 2016 election, opening the door for three Trump-appointed judges to complete the conservative super majority to overturn Roe.
Sotomayor now faces the same decision that RBG faced: Permit a Democratic president and a Democratic Senate to confirm a successor who will hold the seat for decades—or roll the dice. RBG rolled the dice, and we all lost.
For Sotomayor, the decision is even more stark than it was for RBG—precisely because she knows how RBG’s tragedy played out.
Sotomayor was diagnosed with juvenile diabetes when she was just seven years old, and the Huffington Post earlier this year reported the justice requested that a medic accompany her on several recent trips. Several years ago, in 2018, Reuters reported that paramedics were called to Sotomayor’s home to revive her when her blood sugar fell.
These are challenges for someone with lifelong diabetes, but they are not disqualifying.
Associate Justices Amy Coney Barrett, Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan on September 30, 2022.
To publicly pressure a justice to retire is unseemly, but it’s not new. The progressive group, Demand Justice, sent a black and neon-green billboard truck driving around the Supreme Court building, declaring “Breyer, retire. It’s time for a Black woman Supreme Court justice.”
Justice Stephen Breyer stepped aside at 83 in 2023 after former President Donald Trump left office, smoothing the way for President Joe Biden to fulfill his promise to nominate the first Black woman to the Court, Ketanji Brown Jackson.
In reporting this piece, I heard a lot of wishful thinking. If Sotomayor were to step down, so the story goes, it would solve a lot of Biden’s problems. He could appoint Vice President Kamala Harris to fill her seat on the Supreme Court and name a running mate that voters would happily see as his heir apparent (hint: Michigan Gov. Gretchen Whitmer).
Absent that turn of events, I place my trust in Sotomayor to be honest with herself and with the country about the state of her illness, which she has lived with for more than 60 years and knows better than anyone the toll it continues to take.
Zack Ford, senior manager of press and editorial communications at Alliance for Justice (AFJ), a liberal advocacy group, told The Daily Beast that he’s seen an uptick in calls for Sotomayor to resign, which “speaks to how focused people are on the Court and how politized it is.”
AFJ does not take a position on individual retirements, and instead “stands by efforts to de-politicize the court through reforms like term limits, so it’s not left to chance who might be president if a justice has to leave for unplanned reasons.”
The Court is intentionally opaque about much of what it does, so there are no regular health updates on justices with lifetime appointments. SCOTUS recently put out its first ethical guidelines, which Ford notes “are weaker than what’s in place in lower courts.”
At a contentious panel early this year at the University of California Berkeley, which focused on the imbalance of the six to three conservative majority, Sotomayor confessed, “I live in frustration. Every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting.” She said she’s “tired” and “working harder than I ever had” because of the major cases the Court had taken on, a growing emergency calendar, and briefs from outside groups.
She said the growing workload had encroached on the justices’ summer break, opening the door to speculation that she might want to duck out early rather than face years more under the thumb of an emboldened conservative majority.
Chief Justice John Roberts and Justice Sonia Sotomayor on March 7, 2024.
Simmering rumors burst open Saturday on CNN’s Smerconish, when law professor Paul Campos from the University of Colorado Boulder said the chance of Trump winning the presidency and/or Republicans winning control of the Senate “is so high that it just simply isn't worth it to take that kind of a risk...It would really be in the public’s best interest for her (Sotomayor) to do a very statesmanlike thing and step down from the Court rather than running this risk, which would be a completely catastrophic development.”
The decision is intensely personal, which for Sotomayor means being honest with herself about the course of her condition and how it might affect life expectancy. She has been on the Court for fifteen years. As the Court’s first and only Latina, she doesn’t want to cut short her unique perspective to take one for the team.
Asked about liberals calling on Sotomayor to retire, White House spokesman Andrew Bates told NBC News: “President Biden believes that decisions to retire from the Supreme Court should be made by the justices themselves and no one else.” While not joining calls for her to resign, Sen. Sheldon Whitehouse (D-RI) told NBC, “Certainly I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health.”
It’s a mirror image of what Biden faces in deciding to run again—despite 60 percent of Democrats saying that because of his age they want someone else. Once it became clear Biden wasn’t going to step aside, the negative voices quieted, just as they will do with Sotomayor once the window closes and it’s too close to the November election.
Her dissents are the cutting edge of what progressives want, even as they are the loudest voices urging her to make way for a successor that Biden can name. RBG made a bet that she could last until Hillary Clinton was in the White House. Dems are making a bet that Biden can win.
A Sotomayor resignation would give him more options, but it would also reveal how worried Democrats are over how much is on the line in this election. There should be better ways to fix the Court.
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