Sonia Sotomayor has been a great Supreme Court justice. Over the course of her 13 years on the SCOTUS, she has become both the intellectual and spiritual leader of the Court’s liberal wing. As the first Hispanic and the first woman of color in the Court’s history, she serves as an inspiration and a role model, without the unhealthy cult of personality that developed around Ruth Bader Ginsburg.
Nevertheless, she should retire from the SCOTUS, preferably this summer, but certainly no later than the summer of 2024, assuming of course that Democrats still control the Senate at that point. There is not the slightest doubt that Mitch McConnell would not allow any Biden nominee to get through the Senate, if he had the power to do so. (Note that everything in this post can be applied to Elena Kagan as well, although not quite as decisively, as she is six years younger than Sotomayor and has served for one less year on the Court).
Why? If we were drawing up a rational system for staffing the Supreme Court from a blank slate, I suggest such a system would feature the following attributes:
(1) Justices would no longer have to make retiring strategically a central consideration of their tenure.
(2) No individual justice should serve for a term of more than twelve to fifteen years or so.
(3) No justice should stay on the Court much past age 70.
I take it that (1) and (3) are close to completely uncontroversial, in these days of radical right wing revanchism and bipartisan gerontocracy.
Point (2) requires a bit more elaboration. The notion that it’s unobjectionable for justices to stay on the SCOTUS for 25 or 30 or 35 years is an example of an indefensible social practice morphing into a largely unexamined norm, when any critical examination of that norm would reveal its bankruptcy.
One of the consequences of the myth of indispensable men — the graveyards are full of them — is that we tolerate positions of extreme social power and importance being held by single individuals for absurdly long periods, because these people will supposedly be so difficult to replace.
This is of course ridiculous: the merit myth is just that. While Sotomayor has been an excellent justice, there are, conservatively speaking, tens of thousands of people who would also be excellent SCOTUS justices. Indeed thousands of them are Hispanics, and in a nation where within another decade or so one out of every five Americans will be Hispanic, it should be considered unacceptable for the Supreme Court not to have at least one Hispanic justice, which obviously has profound consequences regarding the question of who should replace Sotomayor on the Court.
Ideally, of course, we would have a legislative scheme that would require justices to take senior status from the Court after a reasonable number of years, while ensuring that they were selected to the Court in the first place in a more rational manner than the current haphazard non-system. Proposals limiting justices to 18-year terms, guaranteeing that each president gets two nominations per presidential term would accomplish this goal directly, while indirectly ensuring that, demographically speaking, the Court not look like the late-stage Soviet politburo.
But such reforms are extremely unlikely in the foreseeable future, meaning that we will need to depend on informal norms rather than formal laws to get individual justices to do the right thing.
It’s an overwhelming moral imperative, under our present system, that progressive justices retire strategically. For pragmatic reasons, it would be best if SCOTUS justices didn’t serve for the ridiculously long terms that have become standard in recent decades, and that they retired before all the perils of our current gerontocratic practices became evident in their individual cases.
For all these reasons, Sonia Sotomayor should retire at the end of the current SCOTUS term, and certainly no later than two summers from now, if she chooses to roll the dice on this November’s election, and that gamble doesn’t prove as disastrous as Ginsburg’s gamble eight years earlier turned out to be.
Asking her to do this is asking for an exceptionally altruistic act of moral and political leadership, given the norms that have grown up around the contemporary Supreme Court. Her performance as a justice suggests that she’s fully capable of doing this thing, precisely because it’s the right thing to do.