Kagan and Sotomayor Should Retire
Ginsburg didn't, and now we're in Christofascist hell.
The single most consequential decision Ruth Bader Ginsburg made from the bench was refusing to retire when she could have been replaced by a Democrat.
That’s a depressing statement, but it looks more and more accurate as history trudges forward and the Christofascist Supreme Court tightens its authoritarian death grip on the republic. Of course, the most high profile decision by our new overlords was the sweeping repeal of abortion rights in Dobbs. They’ve also, though, legalized coercive prayer in school by misrepresenting the facts in a case before them, and rolled back tribal sovereignty for Indian nations. They are threatening to further gut provisions securing voting rights for Black people—a move that will notably make it more difficult to elect Democrats, and more difficult to ever pry the court out of conservative hands.
The 6-3 supermajority was cemented when liberal justice Ginsburg died in September 2020, and the GOP raced to confirm radical right jurist Amy Coney Barrett as her successor. Ginsburg was 87 years old. She was 81 in 2014—the last time Democrats controlled the presidency and the Senate. Many people at the time argued publicly that she and Breyer, then 75, should retire.
Among the people arguing that was me. This is from 2014.
It’s increasingly likely that the 2014 midterms will result in a Republican Senate. It’s quite possible that a Republican will be elected in 2016. The government, therefore, is more progressive now than it will be for another six years. Ruth Bader Ginsburg is 81; Stephen Breyer is 75. They are both in good health, but when you get into your 70s and 80s, six years can cause major reversals. If they want their legacy to be carried on by other progressive justices, the smart thing for them to do is retire now. If they wait, and get sick in, say, four years, their replacements could be appointed by a Republican president, and the balance of the court tilted decisively conservative for who knows how long.
I was hardly the only one making that argument; the math was fairly straightforward. Mortality being what it is, elderly judges can die. If they want to preserve their legacies, they need to step down strategically. Otherwise, they’re rolling the dice with the future of the country.
Breyer gambled and won; he managed to wait out the GOP and retire under Biden. Ginsburg gambled—and the country lost.
Lots of court watchers like to parse the individual legal philosophies and personalities of the Supreme Court, as if they’re celebrities; coverage can sound like a Behind the Music episode. But the brutal fact is, in the long term, and often even in the short term, the absolute most consequential quality in a Supreme Court justice is not their intelligence or their ability to work across the aisle. It’s a willingness to put ego aside, think of the country, and retire in a way that won’t hand the United States to Christofascist assholes.
Which is why it’s time for Elena Kagan and Sonia Sotomayor to retire.
The calculus is much the same as it was in 2020. Kagan is 62 years old. Sotomayor is 68. They’re both in reasonably good health and could serve for another 10 or 15 years.
However, once you’re in your 60s, the potential for unexpected health reversals is real. And there’s no guarantee that the Democrats will be in a position to replace a justice for years. The Republicans made it clear when they blocked Merrick Garland at the end of Obama’s term that they will not confirm a Democratic nominee if they hold the Senate.  The Senate map for 2024 for Democrats is grim. They may well be a minority in the body until 2028 or later. And of course a Republican could win the presidency in 2028.
It’s very plausible that there will not be a Democratic president and a Democratic Senate again for a decade or more. Kagan and Sotomayor could be in their 70s or 80s. No doubt they’d like to live that long. But are they willing to be the country on it?
Supreme Court nominations didn’t used to be so partisan; the stakes didn’t used to be so high. But the Republicans have become more and more radical and more and more intransigent. Progressive justices need to be more strategic in their choices. If they’re not, we’ll all suffer, and they risk being remembered, like Ginsburg, not for their accomplishments, but for the last, worst decision they made.