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New rules for a new game


The implicit argument here applies with only slightly less force to Elena Kagan, who will be 66 in 2024, and who will have been on the SCOTUS for 14 years (Sotomayor will be 70 and will have been on the court for 15).

The cold statistical fact is that the next two years are very likely to be the last two years for at least the rest of the decade, and quite possibly for much longer, when Democrats hold both the presidency and a Senate majority. The Senate maps in 2024 and especially 2026 are bad for the Democrats because, thanks to the Wisdom of the Framers, the Senate maps are always bad for the Democrats now. By the end of the next decade, 70% of the US population — the productive, diverse, liberal part — is going to be represented by a total of 30 senators.

It’s absolutely imperative in this situation that every Democratic seat on the SCOTUS be locked down for at least the next quarter century, to the extent it’s possible to do that.

What, exactly, is the argument against replacing geriatric justices who will have been on the court for a decade and a half with much younger people, who are far more likely to be able to hold the seats for the long stretches of time when some combination of a Republican president and/or a Republican senate is going to absolutely refuse to fill those seats with anyone even remotely acceptable to any Democrat?

I suppose the possible arguments are:

(1) We shouldn’t treat the Supreme Court as if it were a fundamentally political body.

This requires no comment at all at this point in American history.

(2) We face a critical shortage of people who will be able to fill Sotomayor’s and Kagan’s seats as ably as they have. This was Ruth Bader Ginsburg’s stated reason for not retiring at a time when she could have been replaced by a Democratic nominee.

This requires no comment at all at this point in American history.

(3) It’s good for Supreme Court justices to stay on the court for more than 15 years for reasons.

There are in fact no such reasons, other than pure political expediency. A rational system would not consider it desirable for people to be on the Supreme Court for 25 or 30 or 35 years, for reasons that, again, are so self-evident in the context of our current gerontocracy that they don’t require further elaboration.

The only real reason it isn’t screamingly obvious that both Sotomayor and Kagan should step down prior to the fall of 2024 is because admitting that this is obviously the right thing for them to do would shatter too many fairy tales about our legal and political systems.

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