Age and the Supreme Court

Gaming the appointment process.

Formal group photograph of the Supreme Court as it was been comprised on June 30, 2022 after Justice Ketanji Brown Jackson joined the Court. The Justices are posed in front of red velvet drapes and arranged by seniority, with five seated and four standing. Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan. Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson. Credit: Fred Schilling, Collection of the Supreme Court of the United States

Vox’s Ian Milhiser argues, “Justices Sotomayor and Kagan must retire now.”

We discussed the notion of Sotomayor’s obligation to retire back in March. While I’m less convinced than most commenters that she’s duty-bound to do so, there’s a least a strong argument for it. She’ll turn 70 in a couple of weeks. But Kagan just turned 64; she should still have many productive years ahead of her.

Milhiser’s opening, while perhaps overblown, is reasonable enough:

Let’s not beat around the bush. It is more likely than not that Donald Trump will return to the White House next year. Right now, polling averages show Trump with a slight popular vote lead over incumbent President Joe Biden. And, even if Biden overcomes this small deficit, the Electoral College system effectively makes Trump votes count more than Biden votes.

It’s true that the Electoral College has a slight Republican lean at present, having won the White House twice in recent years despite the Democrat having received a plurality of the vote. While I think Trump will lose again in the fall, there’s a real risk that he wins.

[I]f Justices Sonia Sotomayor or Elena Kagan remain on the Supreme Court past this year, they risk allowing their seat to be filled by a convicted felon who tried to overthrow the duly elected government of the United States of America, inciting an insurrection at the United States Capitol in the process.

This is, frankly, a red herring. Milhiser would be no less upset if it were Mitt Romney or Larry Hogan doing the appointing. The problem he’s trying to solve is Republican Justices.

The full picture for liberals on the Supreme Court is even grimmer. It is still possible that Biden will prevail this November — polls fairly consistently suggest that the most engaged voters prefer the incumbent — but Democrats need a miracle to keep their majority in the malapportioned United States Senate. 

Senate malapportionment is such a liability for Democrats that Republicans would not have controlled the Senate at all since the late 1990s if Senate seats were distributed fairly based on population. In the likely event that Democrats lose control of the Senate in November, they may not have a realistic shot at regaining the Senate again until 2030 or even later — and that’s assuming that population shifts do not place the Senate permanently in Republican Party hands.

We already know that, if Republicans control the Senate, no Democrat is likely to be confirmed to the Supreme Court. Just ask Merrick Garland

That means that, unless Sotomayor (who turns 70 this month) and Kagan (who is 64) are certain that they will survive well into the 2030s, now is their last chance to leave their Supreme Court seats to someone who won’t spend their tenure on the bench tearing apart everything these two women tried to accomplish during their careers.

So, again, this is rather histrionic.

Democrats had a majority in the Senate (including with a VP breaking the tie) in the 107th Congress (2001-2003) with some brief exceptions; the 110th-113th Congresses (2007-2015); and 117th and 118th Congress (2021-present). It’s really unlikely they’re going to be in the wilderness the rest of the decade.

The rest of the piece is argument about what continued Republican control of the Court would mean for cherished liberal causes. And, while characteristically overblown, he’s likely right on these points. But all replacing Sotomayor and Kagan with younger versions would do is increase the likelihood that there remain at least three liberals on the court.

If Trump wins in November, he’ll almost surely get a chance to replace Thomas (75) and Alito (73). It’s conceivable, although less likely, that Chief Justice Roberts (69) would retire as well. But, again, that just keeps the status quo in place.

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James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. gVOR10 says:

    Perry Bacon had a good column at WAPO. He takes Alito at his word, one side is going to win. And it would be good if it were our side, which won’t outlaw their beliefs and practices. He points out we’re in a civil war, and we ought to start acting like it. GOPs turned SCOTUS into partisan hardball. So be it. We need some liberal equivalent of Harlan Crow to make Sotomayor and Kagan offers they can’t refuse.

    They went low, we need to raise a knee.

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  2. Gustopher says:

    She’ll [Sotomayor] turn 70 in a couple of weeks. But Kagan just turned 64; she should still have many productive years ahead of her.

    So much of our system of government depends upon load-bearing geriatrics. Clearly, a wise decision by the Founding Fathers when creating lifetime appointments.

    (They do not get credit for our two major candidates this year having a combined age of 160 years — we did that)

    Anyway, the Founding Fathers, in their infinite wisdom, created a several month lame duck period after the election where systems can be gamed with no electoral consequences. And, if we are losing the Presidency or the Senate, I hope we make full use of that time, as the Founders intended.

    If Trump wins in November, he’ll almost surely get a chance to replace Thomas (75) and Alito (73). It’s conceivable, although less likely, that Chief Justice Roberts (69) would retire as well.

    I feel like Biden should have given them all gift-certificates to some unlimited bacon subscription a few years ago. Maybe chain saw sculpting classes?

    But, again, that just keeps the status quo in place.

    Locking in the status quo for decades would be bad.

    Given how quickly the Court is shifting this country to the right as they gut major advancements, the status quo isn’t a constant, but a constant march to the right.

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  3. Scott F. says:

    If Milhiser‘s starting premise is true and Trump returns to the White House, what difference will it make how old the liberal justices on the SCOTUS are? All US institutions will be fatally undermined by an authoritarian Trumpist presidency.

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  4. Rick DeMent says:

    It is odd the Catholics and Heritage foundation aligned jurists are way over represented on the court. Or maybe it was … on purpose?

    I nay case a Trump victory will allow the oldest right winger to retire and put younger Catholic and Heritage foundation aligned jurists on the bench.

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  5. James Joyner says:

    @Rick DeMent: There was a time when every single Justice was either Catholic or Jewish. I suspect it has more to do with our relatively recent tendency to select youngish intellectuals rather than those with pragmatic experience for SCOTUS.

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  6. @James Joyner: I will note that youngest conservative Catholics are likely of a very different ideological and theological stripe than the Catholics on the Court when we were younger.

    There was a time when “Catholic” in political terms meant moderate (if not more on the liberal side). These days conservative Catholics of the Alito type remind me of Evangelicals more than they do of traditional Catholics.

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  7. Rick DeMent says:

    @James Joyner:

    Sure, but it looks like any Republican appointment will have to be Heritage foundation aligned. Face it you can’t say that the Heritage foundation is a mainstream outfit. There outlook on the constitution is as inconsistent as it is unpopular. I would say they are not representative of the country as a whole. When you look close it’s positively fringe.

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  8. James Joyner says:

    @Steven L. Taylor: Indeed. I think the earlier crop were Jesuits. The new ones seem more Opis Dei.

    @Rick DeMent: I think you mean ‘Federalist Society’ rather than Heritage Foundation. And yes.

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