WASHINGTON — In late June, around the time the U.S. Supreme Court wraps up its current term, Justice Sonia Sotomayor will turn 70.
Is that old enough to retire?
For most Americans, that’s a simple question: More than 80% of Americans age 70 or older have left the labor force. Among those still working, a large share say they would retire if they could afford it.
Nothing is so simple for Supreme Court justices, whose lifetime tenure turns the decision about when to step down into a complex stew of personal ambition, court dynamics and, of course, politics.
That last factor is the one that has caused some people, including Democratic senators, to gently suggest that Sotomayor, the oldest of the court’s three Democratic nominees, might think about calling it quits now, while President Joe Biden can still name her replacement.
She’s given no indication that, after 15 years on the bench, she’s considering that now. But as the court term winds toward its conclusion — the traditional time for justices to make retirement announcements — and with Biden still trailing former President Donald Trump in most polls, the chatter about retirement almost surely will increase.
A memory haunts Democrats on this issue: The decision by Justice Ruth Bader Ginsburg not to retire in 2013, when President Barack Obama invited her to lunch at the White House and gently tried to remind her that Democrats likely would lose control of the Senate in the 2014 midterm election.
Ginsburg thought she was the best person for the court. “Tell me who the president could have nominated this spring that you would rather see on the court than me?” she said to the Supreme Court reporter from Reuters in a July 2014 interview.
She also said she thought a Democrat would win the presidency in 2016 and be in position to appoint her replacement.
That didn’t happen, of course. Ginsburg, despite bouts of cancer, stayed on the court another six years, until her death in September 2020, in her 27th year on the court. President Trump nominated her replacement, Justice Amy Coney Barrett, a few weeks later.
“Certainly I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health,” Sen. Sheldon Whitehouse, the second-ranking Democrat on the Judiciary Committee, told NBC in an interview last month.
Whitehouse said he was “not joining any calls” for Sotomayor to retire, but warned of the dangers of adding another Trump nominee to the court’s current 6-3 conservative majority.
“Run it to 7-2 and you go from a captured court to a full MAGA court,” he said.
Democratic activists successfully used similar arguments to persuade Justice Stephen G. Breyer to retire in 2022 after 28 years on the court. He was replaced by Biden’s nominee, Ketanji Brown Jackson, with consent of a Democratic-majority Senate.
Discussion of Sotomayor’s tenure has been more muted, in part because Democrats are loath to be seen publicly pushing the court’s first Latina justice to step aside.
Last month the Congressional Hispanic Caucus pushed back against calls for her to step down, saying, “Justice Sonia Sotomayor is the first, and still only, Latina to sit on the United States Supreme Court and has proven to be a brilliant jurist, tough questioner, and fair arbiter of the rule of law throughout her tenure on the court.”
Sotomayor’s case differs in other ways from either Ginsburg’s or Breyer’s: At 70, she’s a decade younger than Ginsburg was in 2013. Breyer was about to turn 84 when he stepped down.
Both Ginsburg and Breyer had significantly longer tenures than Sotomayor’s 15 years.
And unlike Ginsburg, she’s also in apparent good health, despite a history of diabetes. Sotomayor seems fully engaged in her job — in oral arguments, she’s among the court’s most aggressive questioners.
Nonetheless, not retiring would increase the risk that she, too, could eventually be replaced by a Republican president’s nominee.
How much risk?
Let’s first consider the short term.
Polls forecast another close race for president this year. Currently, Trump holds a slight edge, most polls indicate. Whether that will persist is anyone’s guess. Trump’s advantage is built largely on an apparent level of support from Black and Latino voters that may be hard for him to sustain.
So, for the sake of argument, assume that Biden’s chances of reelection are 50-50.
To be certain of confirming a nominee, however, Biden would also need a Democratic majority in the Senate.
In 2016, Obama nominated Merrick Garland to the high court. Senate then-Majority Leader Mitch McConnell, R-Ky., refused to allow even a hearing. Ultimately, the vacancy continued until after the election, and Trump was able to fill the seat with Neil M. Gorsuch.
At the time, McConnell said Garland shouldn’t be considered because 2016 was an election year. But that argument was never more than a make-weight: The precedent he set is that a Republican-majority Senate just won’t act on a Democratic president’s nominee.
If the GOP holds the majority next year, they might back away from that level of obstruction. Republican leaders might decide that they don’t need to go all out to block a nomination if it would not change the partisan balance of the court, but merely substitute a younger Democrat for an older one.
Given the intense partisanship that now dominates Washington, however, no one should count on that.
So what are the odds of Democrats’ holding the Senate? To do so, they need all of their incumbents to win reelection, including two in states Biden almost surely will lose — Ohio and Montana. That may happen, but it’s far from a sure bet.
All together, the chances that Biden will win and have a Democratic Senate are certainly less than 50-50. How much less no one really knows, but it’s enough to worry Democrats who think about the future of the court.
After that, the picture doesn’t get a whole lot better for the party. In the last decade, Democrats have done very badly with rural voters, and the Senate has a built-in skew toward small, rural states.
Unless Democrats start winning again outside of the cities and suburbs, holding a Senate majority will continue to be a big problem for them. The current lineup of a Democratic president plus a Democratic-majority Senate may not recur for a while.
Whether Sotomayor should worry about such questions is a matter for debate. The justices like to insist that they’re fundamentally not partisans. But that’s a notion fewer and fewer Americans accept.
Beyond the political questions is a more philosophical one: Just how long should a Supreme Court justice stay in office?
Sotomayor’s 15 years on the court are just slightly more than the average that prevailed from George Washington’s presidency down to 1970, law professors Steven G. Calabresi and James Lindgren wrote in a 2006 law review article.
The average tenure, however, began to balloon in the 1970s and has now roughly doubled, they found. Presidents in recent decades have almost exclusively turned to relatively young nominees in an effort to put a long-lasting stamp on the court.
Calabresi and Lindgren argued for term limits for the justices, asserting that the current extremely long tenures undermine accountability and make the court less in touch with changing conditions in the country.
A number of liberal Democrats have taken up that cause in recent years, hoping to break up the court’s entrenched majority of conservative, Republican appointees.
None of that is necessarily Sotomayor’s concern: Several of the current justices said during their confirmation hearings that an 18-year term limit for the high court could be a good idea. None of them seem to be rushing to apply it to their own cases.
Among the six Republican nominees on the court, Clarence Thomas, 75, has served since 1991, Chief Justice John G. Roberts Jr., 69, is completing his 19th year, as is Justice Samuel A. Alito Jr., 74.
Still, the court has clearly suffered from a drop in public esteem in recent years. Some of that involves deeply unpopular decisions, especially the overturning of Roe vs. Wade, which had guaranteed abortion rights in the U.S.
But some of the decline comes from the court’s image as being cloistered and out of touch. A single justice’s announcement that she thinks 15 years is enough wouldn’t change the court’s image all by itself.
It could, however, be a place to start.
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