Democratic Supreme Court Justices Need to Retire Strategically

Breyer (finally) did the right thing. Sotomayor and Kagan should as well.

In April 2021, Supreme Court Justice Stephen Breyer, a Bill Clinton appointee, brushed aside arguments that he should retire and allow a Democratic president and senate to confirm his successor. Judges, he said, “are loyal to the rule of law, not to the political party that helped to secure their appointment.

Progressive and Democratic groups, though, urged Breyer to step down. And eight months later, in January 2022, he did, allowing President Joe Biden to appoint Ketanji Brown Jackson, the first Black woman justice, to the Supreme Court.

The reason for Breyer to leave the bench was straightforward. At the beginning of 2022 he was 84 years old. Were Republicans to win the presidency in 2024, Breyer would be at least 90 before a Democrat could replace him. Breyer had a choice: step down or face the possibility that he would die in office only to be replaced by someone who would work to undo his legacy on issues like abortion rights, the death penalty, and immigrant detention.

Ideally, highly respected senior judges should be able to retire whenever they feel ready. Unfortunately, the current confirmation process for justices is highly partisan, and the stakes for control of the court are, for many people, life and death. With constitutional lifetime appointments, and most court reform efforts dead in the water, justice retirements have a huge effect on the future of the country.

Breyer made the right choice to step down. Given the uncertain presidential election and the poor Senate map, Justices Elena Kagan and Sonia Sotomayor should follow his example if they want to ensure their values remain represented on the court.

Justices make strategic decisions about the makeup of the court

Breyer initially suggested that there was something improper about justices timing their retirements to affect their successors. But the truth is that justices regularly have a hand in shaping the future of the court.

The most influential and the least defensible instance of this dynamic is the case of Bush v. Gore. In 2000, the conservative majority on the Supreme Court handed what was basically a tied presidential election to the Republican candidate. The decision was nakedly partisan—and the Republican justices who made it had to know that they were ensuring their own ability to retire if they chose.

Sure enough, George W. Bush appointed Chief Justice Roberts and Sam Alito in his second term. Both judges he replaced, William Rehnquist and Sandra Day O’Connor, had voted to give him the presidency.

More recently, and more in line with standard norms, Anthony Kennedy, a Reagan appointee, stepped down in 2018 because he wanted to be replaced by a Republican president—in this case, Republican president Donald Trump.

Of course, Justices don’t always step down strategically. Conservative Reagan appointee Antonin Scalia died unexpectedly at 79 in 2016. Barack Obama, as Democratic president, was in office, and should have had the opportunity to appoint a replacement. But Senate Majority Leader Mitch McConnell took the unprecedented step of refusing to hold hearings on Obama’s appointment, Merrick Garland. Garland was in limbo for almost a year. When Trump won the 2016 election, he appointed conservative Neil Gorsuch to the seat instead.

And then there’s Clinton appointee Ruth Bader Ginsburg…and Breyer himself. In 2014, when Obama was president and the Democrats held the Senate, many commenters urged Ginsburg, then 81, and Breyer, then 76, to retire. Neither did. In 2014, Republicans gained control of the Senate, in 2016 they gained the presidency.

Breyer was lucky enough to survive until 2020, when Democrats won both back. Ginsburg, sadly, was not. She died a little over a month before the 2020 elections. Trump and McConnell rushed in her replacement, Amy Coney Barrett. That solidified the 6-3 conservative majority that overturned Roe v. Wade and completed the decimation of the Voting Rights Act, to name only two judicial disasters.

The choice for current justices

The lopsided conservative court is the result of a number of factors. One is simple bad luck. Another is structural; thanks to the disproportionate power of white rural voters in large empty states, Republicans have a huge electoral advantage in the Senate and a smaller one in the electoral college. This has allowed them to keep a stranglehold on judicial appointments. A third has been McConnell’s willingness to abandon norms in his naked grab for power in the highest court.

But a final factor has been Democratic justices’ reluctance to retire strategically. Ginsburg and Kennedy both took a big gamble in 2014 with their legacies—on voting rights, on abortion rights, on LGBT rights, on the death penalty. We’re living with the results.

Justices Sotomayor and Kagan, both Obama appointees, are faced with a similar choice now. Sotomayor, an Obama appointment, is 69; Kagan is 63. Neither is that old by the standards of Supreme Court judges. They could each conceivably serve on the court for another 10 or 15 years.

The problem is that there’s no guarantee of continue good health, and it might easily be many years (4? 6? 10? More?) before we have a Democratic president and a Democratic Senate again. Currently presidential polls for 2024 are close. The Senate map is terrible. Democrats are more likely than not going to lose the chamber, and given what happened to Garland, it’s quite possible that a GOP senate simply won’t approve a Democratic appointee for a seat.

Again, Sotomayor and Kagan are both excellent justices. They have not been embroiled in catastrophic ethics scandals like some of their conservative colleagues. They show no signs of being unable to do the work of the court.

But liberal justices are badly outnumbered, and we’re already seen the terrible toll this far right Christofascist court can inflict on the country and on marginalized people. Democrats desperately need to put more justices on the court; they can’t afford to lose any. And that means, unfortunately, that strategic retirements are more important than ever. Hopefully the justices will take that into account and do what they can to protect their legacy by giving Biden the chance to appoint two more justices this year.

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Note: I wrote this piece a few months back for another site, and what with one thing and another it didn’t get published. When I wrote it, not many people were discussing this; since then, a lot of people have. They’ve mostly focused on Sotomayor, and some have discussed her diabetes.

I think that’s misguided. Sotomayor seems in good health, and is managing her illness. The issue isn’t her condition. The issue is that any justice who gets towards retirement age has to start thinking about the fact that time is limited. Given Democratic disadvantages, and the terrifying prospect of never-ending Christofascist rule by court, I think any justice in their 60s should be looking for the moment to retire and preserve their seat. For both Sotomayor and Kagan, that moment is, unfortunately, right now.