Forget Ruth Bader Ginsburg. It is Sonia Sotomayor who is the greatest liberal to sit on the supreme court in my adult lifetime. The first Latina to hold the position of justice, she has blazed a relentlessly progressive trail on the highest bench in the land.
Whether it was her lone dissent in a North Carolina voting rights case in 2016 (“the court’s conclusion … is a fiction”); her ingenious referencing of Ta-Nehisi Coates, James Baldwin and WEB DuBois in another 2016 dissent over unreasonable searches and seizures; or her withering observation at the Dobbs oral argument in 2021 (“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?”), Sotomayor has stood head and shoulders above both her liberal and conservative colleagues on the bench for the past 15 years.
And so it is with good reason that she has been called the “conscience of the supreme court” (the Nation), “the truth teller of the supreme court” (New York Times) and “the real liberal queen of the court” (Above the Law).
I happen to agree 100% with all of those descriptions. But – and it pains me to write these words – I also believe it is time for Sotomayor to retire.
Why?
Okay, now it is time to remember Ruth Bader Ginsburg. To recall how RBG, who had survived two bouts of cancer, refused to quit the court despite calls to do so from leading liberals during Barack Obama’s second term office. To hark back to her insistence, in multiple interviews, that it was “misguided” to insist she retire and that she would only stand down “when it’s time”. To recollect how, on her deathbed in 2020, she told her granddaughter that her “most fervent wish is that I will not be replaced until a new president is installed” – and how it made no difference whatsoever! Donald Trump nominated Amy Coney Barrett as RBG’s replacement just eight days after her death, and Senate Republicans confirmed Barrett to RBG’s vacant seat just eight days before election day.
With Joe Biden trailing Trump in several swing states and Democrats also in danger of losing their razor-thin majority in the Senate, are we really prepared for history to repeat itself? Sotomayor will turn 70 in June. Of course, only Sotomayor knows the full status of her health, still it is public knowledge that she has had type 1 diabetes since she was seven; had paramedics called to her home; and is the only sitting justice to have, reportedly, traveled with a medic. To be clear: she could easily – and God willing – survive a potential Trump second term and still be dishing out dissents from the bench come 2029.
But why take that risk? Why not retire now? Why not quit the bench at the same age that justices in Belgium, Australia and Japan are forced to do so?
Let’s deal with the three most obvious objections.
First, wouldn’t a replacement for Sotomayor that Senator Joe Manchin has to approve be less progressive, and more centrist, than our sole Latina, super-progressive justice? Perhaps. But, again, consider the alternative. Would we rather Biden replace Sotomayor with a centrist in 2024 … or Trump replace her with a far-right Federalist Society goon in 2025? Or, what if Trump doesn’t win but the Republican party takes control of the Senate and blocks a second-term Biden from replacing her between 2025 and 2028?
Second, is there really any difference between a 6-3 conservative majority on the court and a 7-2 majority? Isn’t all lost already? Not quite. The damage to our democracy from a 7-2 hard-right court would be on a whole other and existential level. Yes, 6-3 has been a disaster for our progressive priorities (Dobbs! Bruen! Kennedy!) but there have also been a handful of key 5-4 victories (Redistricting! Razor wire at the border! Ghost guns!) in cases where Roberts plus one other conservative have come over from the dark side. None of that happens in a 7-2 court. The hard-right conservatives win not just most of the time but every single time.
Third, how can anyone on the left dare ask the first, and only, Latina justice to quit the supreme court?
It’s simple. Women in general, and Latinas especially, will suffer most from a 7-2 supreme court. It is because I am so worried about the future of minority rights in this country that I – reluctantly – want Sotomayor to step aside.
This has nothing to do with her race or her gender. Forget RBG (again). Consider Stephen Breyer. You remember Breyer, right? The bookish and bespectacled liberal justice who quit the supreme court in 2022, at the age of 83, in part because of an intense pressure campaign from the left.
The fact that he was a white man didn’t shield him from criticism – or from calls for him to stand down. In 2021, the progressive group Demand Justice sent a billboard truck to circle the supreme court building with the message: “Breyer, retire.” I joined in, too. “Retire, retire, retire,” I said in a monologue for my Peacock show in 2021. “Or history may end up judging you, Justice Breyer.”
So why is it okay to pressure Breyer to retire but not Sotomayor? This time round, Demand Justice isn’t taking a position on whether an older liberal justice should quit while a Democratic president and Senate can still replace them and, as HuffPost reports, “on the left, there is little open debate about whether she should retire.”
Democrats, it seems, still don’t seem keen on wielding power or influence over the highest court in the nation. In 2013, Barack Obama met with RBG for lunch and tried to nudge her into retiring, but as the New York Times later reported, Obama “did not directly bring up the subject of retirement to Justice Ginsburg”.
Compare and contrast with Donald Trump. The finance journalist David Enrich, in his book Dark Towers, reveals how the Trump family carried out a “coordinated White House charm offensive” to persuade Justice Anthony Kennedy to retire in 2018. Trump himself, according to Vanity Fair, “worked for months to assure Kennedy his legacy would be in good hands”.
The offensive was a success. Out went self-styled moderate Kennedy, in came the hard-right political operative Brett Kavanaugh.
If there is to be a change to the supreme court in 2024, Biden and the Senate majority leader, Chuck Schumer, have only a few months left to make it happen. And yet they don’t seem too bothered about Sotomayor’s age or health. Last week, the White House press secretary, Karine Jean-Pierre, called it “a personal decision for her to make”.
A personal decision? The prospect of a 7-2 conservative supreme court, with a far-right Federalist Soceity apparatchik having taken “liberal queen” Sotomayor’s seat on the bench, should fill us all with dread.
Biden, elected Democrats, and liberals and progressives across the board should be both publicly and privately encouraging Sotomayor to consider what she wants her legacy to be, to remember what happened with RBG, and to not take any kind of gamble with the future of our democracy.
If insanity is doing the same thing again and again and expecting different results, then I’m sorry but a liberal supreme court justice about to enter her 70s and refusing to retire on a Democratic president and Democratic Senate’s watch is nothing short of insane.
Mehdi Hasan is the CEO and editor-in-chief of Zeteo
