Justice Sotomayor Should Retire

Taking the Senate math seriously means planning for the worst.

Note: This post is pretty morbid, but after the leaked overturning of Roe v. Wade, I think this needs to be discussed. 

In Slow Boring a few weeks ago, I wrote that I think the Democratic party needs to take its bleak long term prospects in the Senate, given current coalitions, more seriously. One consequence of that is that the party should perhaps change its messaging. But there are other consequences as well – and one of those, I think, is that Sonia Sotomayor should retire immediately after the current Supreme Court term ends. 

The basic reasoning here is simple. Sotomayor turns 68 in six weeks. On average, per the actuarial tables compiled by the Social Security Administration, a 68 year old woman can expect to live an additional 18 years (the median is probably somewhat lower, since lifespan has a long tail). However, Sotomayor is also a diagnosed type 1 diabetic, and it seems like there is pretty clear evidence that type 1 diabetics don’t live as long.

To be clear, I am not a medical professional. I don’t claim to know how long Sonia Sotomayor will live. Her dad died at 43, but her mom made it to 94, so who knows. But I think you’d be hard pressed to argue that a 68 year old woman with type 1 diabetes doesn’t have at least a 25% chance of dying within the next 15 years.¹ 

I also don’t claim to know when the next Democratic Senate majority will occur. I think, however, that it won’t be for a while – my guess is that we should expect Democrats to retake the chamber after 2022 in something like 15 years.

Let’s run with these made up numbers for a second. If there’s a 25% chance Sotomayor dies in the next 15 years (this seems conservative to me, to be honest), and a 50% chance Democrats don’t have the Senate at any point during that time, then there’s a one in eight chance she dies with a Republican Senate. I’m pretty confident that a Republican Senate wouldn’t confirm a Democratic nominee for her replacement, especially after their near-unanimous opposition to Justice Ketanji Brown Jackson, despite her stellar resumé. 

This means there’s a decent chance – probably more than 10%, I would estimate – that Sotomayor staying on the Court after January ultimately costs the progressive wing of the Court a seat. 

That’s a huge deal

As we saw with Ginsberg, people in power are often bad at thinking about the long term impacts of their actions. But with the Court’s decision to overrule 50 years of reproductive rights that leaked yesterday, it’s clearer than ever that continued Republican dominance of the Court will be an unmitigated disaster. I don’t even want to imagine what a 7-2 Court would look like – marriage equality would certainly be on the chopping block,² as would any separation of church and state, and a large portion of the government’s administrative apparatus as well. 

To be clear, I’m not excited about Sotomayor resigning. I really like Sonia Sotomayor! As I said on Twitter, I think she’s one of the best Justices the Court has ever seen. But ultimately, she – like every other SCOTUS member ever – is replaceable. It might be satisfying to read Sotomayor’s stirring dissents, but there is someone else younger out there who can write blistering minority opinions as well. It would also be a bummer to lose the first Latina member of the Court – though of course, Biden could simply appoint a Latina to fill her seat (and if she does retire, he probably should). 

What about Kagan?

Kagan is five years younger, and doesn’t have type 1 diabetes. So I think it’s somewhat less urgent that she retire; 62 year old women can expect to live an additional 23 years on average. On the other hand, her father died in 1994,³ and her mother died at age 78. So I think she should at least consider retiring as well. 

Learning the right lessons

Overall, I think it’s important to properly learn the lesson of Justice Ginsberg. The pressure campaign to replace Justice Breyer showed that liberals at least learned that it’s important to push octogenarians with an inflated view of their own self importance to make tactical decisions. A pressure campaign to replace Sotomayor would show that liberals are learning to take the Democratic party’s Senate nightmare seriously.

I haven’t seen anyone say this yet, so I will be the first: for the good of the country, Sonia Sotomayor should retire immediately. 

1.  If a medical professional wants to reply in the comments with a detailed argument for why this probability is actually much lower than 25%, please do and I will add a correction to this piece. 

2.  It might be already, unfortunately. But it definitely would be if the Court gets to 7-2. 

3.  I spent 15 minutes trying to figure out when her father was born and failed.  If you know the answer, please tell me.