Calls for Sotomayor and Kagan to retire whip up Supreme Court term limit debate

“We have now lived with the consequences of Ruth Bader Ginsburg’s late-life arrogance for more than two years,” Ian Millhiser wrote on Wednesday, noting the late justice, who died in 2020, should have retired while Barack Obama was in the White House and had a Democratic majority in the Senate prior to the GOP takeover in 2015.

The article has whipped up discussion on the Left reminiscent of past campaigns to urge Justice Stephen Breyer to retire and reignited liberal calls for term limits. The early retirement suggestion caught the attention of Fix the Court, an advocacy group seeking reforms in the federal judiciary, that retweeted a comment recommending “fixed terms,” ending life tenure for justices.

“I think we’ve reached the point where there will not be a new Supreme Court justice when there’s a vacancy if the party that controls the Senate and the party in the White House are different,” Fix the Court founder Gabe Roth told the Washington Examiner, citing then-Senate Majority Leader Mitch McConnell’s (R-KY) outright rejection of Obama’s high court nominee, Merrick Garland.

Millhiser’s piece, “Sotomayor and Kagan need to think about retiring,” warns that by retaining their posts while Democrats maintain Senate and Oval Office control, the pair of liberal justices risk ushering another scenario similar to former President Donald Trump‘s opportunity to replace Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett in 2020, which cemented the 6-3 conservative majority on the court.

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The precipice for the progressive writer’s argument surrounding 68-year-old Sotomayor and 62-year-old Kagan is that Democrats stand a higher chance of losing control of the Senate within the next two years.

“Democrats won’t have a realistic shot at a Senate majority until 2030 or 2032,” Millhiser wrote, citing forecasts that Democrats face an unfavorable 2024 Senate map that could end the party’s control of the chamber for years to come.

“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 added.

Mark Joseph Stern, a senior legal affairs writer for Slate, tweeted, “Ian is indisputably correct about the political calculus here,” lamenting his admission because he thinks “Sotomayor and Kagan are brilliant justices and I’d be sad to see them go.”

“After 2025, Democrats may not hold the White House and the Senate for a decade+. This argument should be taken seriously,” Stern added.

Millhiser conceded that the pair of liberal justices are in good health and could reasonably stay on the court for another 10 years, noting that while Sotomayor has diabetes, it’s a condition she has managed throughout most of her life.

Another hurdle Millhiser and some of his supporters face is that Ginsburg was adamant about standing against the public pressuring her into retirement despite her age and dwindling health.

“So tell me who the president could have nominated this spring that you would rather see on the court than me?” Ginsburg told Reuters in a 2014 interview.

The most recent justice to retire from the high court, Breyer, was confronted by dozens of progressive advocacy campaigns urging him to retire under the Biden administration.

Breyer, an 84-year-old appointee of former President Bill Clinton, ultimately left the court this year and was replaced by 52-year-old Justice Ketanji Brown Jackson, with media analysts attributing his retirement to being “all about politics.”

But the words of Breyer’s 2021 book, The Authority of the Court and the Peril of Politics, flatly reject judges relying on any type of political calculus to determine the right time for retirement.

“A judge’s loyalty is to the rule of law,” Breyer wrote, “not the political party that helped to secure his or her appointment.”

The online response to Millhiser’s piece once again raised discussions about imposing term limits for justices, specifically in the tweet from New York University law professor Rick Pildes.

“One of the strongest arguments for fixed terms on the Court is that they would eliminate (1) strategic retirements and non-retirements; (2) perceptions that Justices are retiring or not for strategic reasons; and (3) political pressures for Justices to retire strategically,” Pildes tweeted.

But the ideas raised by Pildes and other like-minded legal scholars are unlikely to gain traction among conservative lawmakers. Citing Alexander Hamilton, McConnell delivered a speech in October last year equating term limits for justices to other “court-packing” calls by the Democrats.

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Regarding life tenure on the Supreme Court, “our founders insisted on it because they knew that the branches of government with the powers to write and execute laws would be tempted to undermine the branch that could exercise nothing but its judgment,” McConnell said.

A bill proposed by Rep. Hank Johnson (D-GA) that would allow a president to nominate a justice every two years and force the current justices into retirement by the order of their seniority was introduced on the House floor in August but never advanced.