These Legal Scholars Have A Stark Warning About 1 Supreme Court Justice

A presidential election is looming. Control of the Senate is uncertain. The window may be closing for the Democratic Party to replace the oldest Supreme Court justice nominated by a Democratic president.

Paul Campos, a law professor at the University of Colorado Boulder, remembers how this story went last time, and he’s begging for a different ending.

“Sotomayor has been an outstanding justice,” he said. “But the Ruth Bader Ginsburg precedent ought to be extremely sobering. … The cost of her failing to be replaced by a Democratic president with a Democratic Senate would be catastrophic.”

At 69, Sonia Sotomayor is the oldest justice on the Supreme Court to have been picked by a Democrat. And now, Democrats may be about to lose the Senate, White House or both. But on the left, there is little open debate about whether she should retire.

The relative silence recalls the almost total lack of pressure on Ginsburg to retire exactly one decade ago. Ginsburg, seemingly betting she would outlive a Republican-held Senate and then Donald Trump’s presidency, died of pancreatic cancer at age 87, just weeks before Joe Biden won the 2020 election. When Trump nominated her replacement, Amy Coney Barrett, and she was confirmed on Oct. 26, he cemented the 6-3 conservative majority that then took less than two years to fully overturn Roe v. Wade, among other seismic jurisprudential shifts.

Fearing a repeat of history, a handful of people who were critical of Ginsburg’s judgment, are wearily reprising their warnings ― agrees with him.

“I do not think Justice Sotomayor should retire now,” said Erwin Chemerinsky, dean of the University of California at Berkeley School of Law.

In 2014, Chemerinsky tried to shock Democrats out of complacency with headlines like “Love Ya Ruth, But It’s Time to Go.”

“A crucial difference is that Justice Sotomayor is just 69 years old,” he said. “I think that is quite different from when I urged Justice Ginsburg and Justice Breyer to retire. Both were in their 80s.”

What worries Chemerinsky is not how old Sotomayor will be when the stars next align for the Democrats but how willing they are today, in an election year, to replace her with someone equally progressive.

“With the slim Democratic majority, there is no assurance that a replacement would get confirmed,” he said. (Presumably Biden, if he wanted to gauge his level of support in the Senate, could simply ask.)

Morbid conversations like these are the tradeoff for lifetime tenure. In the modern era, justices leave the Supreme Court only by dying or resigning. And only one of those is something they can do strategically.

Breyer did it, retiring in 2022 after 27 years on the court. (This week, he called for age-based term limits for justices.) Former Justice Anthony Kennedy retired after persuading Trump to consider his former clerk, Brett Kavanaugh, as his replacement before retiring in 2018 at age 82.

Although Justice Antonin Scalia had the bad fortune to die while Barack Obama was president, in February 2016, then-Senate Majority Leader Mitch McConnell contrived to hold his seat open long enough for Trump to win the presidential election in November and then name Scalia’s successor, Neil Gorsuch.

Ginsburg had no such luck. Her failure to choose her moment allowed Trump to name Barrett just weeks before he lost reelection, with disastrous consequences for liberals.

When the court heard Dobbs, the 2022 case that overturned Roe v. Wade, Chief Justice John Roberts reportedly tried to corral enough votes to save the constitutional right to an abortion but fell one short. The leak of the draft decision in May 2022 is widely believed to have been an attempt to shut his efforts down.

“We’re in a situation where somebody like Gorsuch could be the median vote,” Campos said. “And we’re supposed to keep this demure silence about whether Sotomayor should step down. It wouldn’t kill us if [Elena] Kagan would too.” Kagan, 63, has served on the court for 13 years.

Campos is struggling to start these conversations in the circles that matter. In 2021, he led the drumbeat for Breyer’s retirement with a New York Times opinion article titled “Justice Breyer Should Retire Right Now.” When he pitched a similar op-ed in 2022, the Times passed, he said.

But there is one conversation he finds himself engaged in again and again: the fatalistic kind, where Democrats wonder why it even matters to preserve Sotomayor’s seat on a 6-3 court.

“That’s like asking, ’What does it matter to give up another touchdown in the second quarter when we’re already down 14 points?” Campos said. “At some point, you have to make your comeback.”