What We Forget About When We Talk About Sonia Sotomayor Retiring

There has been a burgeoning cottage industry in Supreme Court retirement advocacy with many left-leaning journalists inveighing Justice Sonia Sotomayor to step down immediately to give President Joe Biden and a Democratic-controlled Senate a chance to replace her and forestall a 7–2 conservative supermajority if Biden loses in November. That has led to an equally furious backlash, frequently gendered, among progressives who assert that this whole retirement roulette almost unerringly trains its pistols on women. And it’s all rounded out by hand-wringing among elected Democrats who feel extreme angst over the whole conversation.

Last week on Amicus, Dahlia Lithwick and Mark Joseph Stern tried to discuss a topic that they both said makes them feel a bit gross to even mention. Their discussion has been lightly edited for clarity. Listen to the whole episode here.

Dahlia Lithwick: What started with a trickle of think pieces has now become a cascade of D.C. press releases and talking heads on whether Sonia Sotomayor is duty-bound to step down before the election. And this kind of cajoling and pushiness and smoke signaling is, by its very nature, unseemly. Some would also suggest, including me, that it’s also quite sexist. In fact, I hate this conversation with the heat of a million suns.

Mark Joseph Stern: I dislike the conversation, but also want to respect people’s anger because I think that they have a right to feel frustration. I think sometimes that frustration is misdirected. But I totally understand why they see Justice Ginsburg’s death at the end of the Trump administration and pinpoint her for the blame. It helps to step back and look at how we got to a point where RBG’s death could lead to a 6–3 conservative super majority. Only through Mitch McConnell’s unprecedented obstruction of Merrick Garland’s nomination, and the rushed, hardball, hypocritical confirmation of Justice Amy Coney Barrett in 2020—as people were literally already voting—only through that chain of events was the court truly flipped to this entrenched dominant majority where the conservatives could always lose one vote and still reign supreme, as we saw in Dobbs and so many other disastrous decisions.

I’ll be honest: I feel some frustration with Justice Ginsburg. I think that she made the decision in 2013 or 2014 that Hillary Clinton was going to win in 2016, and that she wanted to step down under the first woman president and be replaced by the first woman president. I think she overestimated Hillary Clinton’s potential to win and also overestimated her own health at the time.

But I also think that she shouldn’t have been in that position in the first place, where perhaps the entire fate of all democracy and civil rights rested on her retirement timing. Then again, this is more broadly a systems problem: We have an incredibly bizarro, messed-up system where the individual mortality of a handful of lawyers determines the fate of the republic. A lot of people who were understandably frustrated with Justice Ginsburg are now transferring that frustration to Justice Sotomayor. Fine. But I would love for them to also take a step back and think about this broader, deeply messed-up process by which we replace justices, which it turns out is super easy to game if you’re cynical enough and ruthless enough.

I think my one “systems” response, which I invariably trot out, is that Mitch McConnell held that Scalia seat open for almost a year, and we did nothing. We bellyached and we grouched, but really, we did nothing. Then we went into an election in 2016 that we knew was going to be a close election. And we had one open seat that had been held open. We had two octogenarians and one soon-to-be octogenarian on the court. And one side voted as though all that was true. And one side campaigned as though that was true. We had Ted Cruz, we had John McCain running for office saying, “If I hold my Senate seat back, we will hold that seat open for four more years, or eight more years, if Hillary Clinton wins.” Even McCain, the so-called maverick, said he’d hold a Supreme Court seat open under Hillary!  

And meanwhile, all due respect, we had a bunch of Democrats running for the Senate.
Crickets. Nobody ran on it. Nobody messaged it.

And I want to make one other point, because this is the current Great Man Theory of politics. It’s fun to blame one person in hindsight. But to the extent that you use it to absolve yourself of responsibility and thus absolve yourself of learning the lesson, what does it get you? The lesson is that by a 2-to-1 margin, every voter in 2016 who showed up to vote around the Supreme Court voted for Donald Trump. Democrats ranked it at priority No. 13. And it is all well and good to be mad at RBG, but then we just keep replicating that underlying problem, in the form of: We’re gonna vote someone else off the island every election cycle. Because we haven’t learned the lesson that you can pack the court, you can impose term limits, you can do jurisdiction-stripping. You can do systemic reform to change the fact that we live in a monarchy in which we wait for smoke signals to see which of the dauphins will next rule. And there’s one side that is completely willing to subvert the system. And then the other side that likes to yell at justices, and parenthetically, they really like to yell at the female justices.

I would push back on that last point, because I don’t think anyone has faced as fierce a push for retirement as Justice Stephen Breyer. I will agree that much of the grousing and screaming at the female justices has shades of sexism. I don’t disagree that some of the demands made of Justice Ginsburg 10 years ago and Justice Sotomayor today have shades of misogynistic or patriarchal assumptions about a woman’s ability to make judgements for herself. But I will say that the progressive groups that are really kind of realistic about the courts and pushing to get the Democratic Party and progressives to be more realistic and hardball-y about the courts? They screamed at Breyer. They drove around trucks with signs saying, “Retire, Stephen Breyer!” They pummeled the media with commentary and analysis and TV hits saying it was time for him to step down. And frankly, I think Breyer did not want to step down. He loved that job. He wanted to keep it, but he made the calculation that it was time. And I think that there’s a chance that some of this harassment played a role and that that helped coax him off the court.

And because of that, we got Justice Ketanji Brown Jackson! A relatively young Black woman who is doing amazing stuff on that court today. And so, back to where we are right now with Justice Sotomayor: You and I think that she is the cat’s pajamas because she is a brilliant jurist. She brings so much to the bench. Her perspective as a Latina, her life experience, her inspiring story, her views on criminal justice are so crucial. Her understanding of systemic racism … I could go on and on, but there are also other amazing judges in the wings who are waiting for an elevation. There are other awesome Biden appointees who are waiting to get tapped for a seat on the Supreme Court. And Justice Sotomayor is approaching 70. She does have health problems. I’m not going to pretend to know the severity of those health problems. I’m not going to say that they alone are a reason for her to step down, but she’s reached an age where most Americans are already retired. She’s served on the court for 15 years. I myself have been saying for quite a long time that we should not expect justices to serve for decades.

I think we agree that ultimately this is a systems problem. That we should not live in thrall to nine justices appointed for life, who, by the way, give us no health information. Remember when Clarence Thomas was in the hospital and nobody told us why, or for how long? Remember when Chief Justice Rehnquist was dying of thyroid cancer and would miss oral arguments and no one would tell us why? Part of the problem is that in other branches of normal, functioning, transparent government, there’s a duty to disclose catastrophic health outcomes, and people can then plan their lives around it, and one can plan whether or not to then rally to push someone off the court. But we live under this insane system in which the ways we talk about the court and to the court are in these hushed tones of acolytes at Delphi. So I think this is part of just a larger conversation about who gets to talk to the justices and how we are allowed to speak to them.

Then again, I also want to point out that virtually every person—Nate Silver, Josh Barro, Mehdi Hassan, Sen. Dick Blumenthal—virtually every prominent person pushing is male. And the people defending her are female. And the only other thing I want to add is, women have this “second shift” where, after doing their day job, they then go home and do all the dishes and refill all the soap dispensers. And I think there is a profound second shift happening for the women at the court, which is protecting the reputational interests and integrity of the court. It is not an accident that it’s Justice Sotomayor and Justice Barrett traveling all around the country saying, “Oh we’re all friends, we’re fine.” It is not an accident that it’s the women who are following the recusal rules and the ethics rules. It is not an accident that the vote breakdown in Anderson, the Colorado ballot case, was the women versus the men. Because there is a second shift happening at the U.S. Supreme Court that is protecting the reputational interests of that court. And at least in my view, yes, it falls on the chief justice, but it falls most heavily on the women justices. And the people who just don’t care about how the court looks to the public—overwhelmingly, they tend to be men.

I hear all of that. But still, I would be remiss if I didn’t say that I do think Justice Sotomayor should at least seriously consider retirement. And I think she will, because she is super clear-eyed about the dangers of a 6–3 court, and also understands the disastrous consequences of a 7–2 court. She is aware of the stakes. She writes about them, and she calls out her conservative colleagues for inflicting horrible damage on the law and individual rights in the country.

Again, though, I think there are brilliant jurists waiting in the wings who could replace her. And I think that the stakes are just too sky-high to gamble on Trump winning a second term, Republicans winning the Senate, Sotomayor having to step down—or, God forbid, dying—and the court flipping to a far-far-far-right majority that it would probably take 50 years to dislodge.