Josh is absolutely right that Sotomayor SHOULD retire, for the reasons he gives.
But I'm going to rain on the parade and say that she is almost certainly not going to retire. The most typical time for a justice to announce their retirement "on confirmation of my successor" is immediately following the end of a term, when there are no pending cases and no arguments being heard for a couple of months.
Anyway, the court issued its final orders list of the term on July 2. It's been 10 days with no announcement. From that I surmise that she is not going to retire - if that had been her intent the announcement would have been made on July 2nd or 3 rd or 8th.
If there's one thing the left has been right about, it's that we truly are the "Do Nothing Democrats". We are so do-nothing that we would rather sit in our seats until we fucking die no matter the consequences and we will support anyone else who wants to do so.
Suppose you could get her replacement through the Senate (less than certain now) then you cement in an additional liberal justice for 40 years at the cost of eroding the norm that SCOTUS justices aren't supposed to be overtly partisan or concerned about outcomes a bit more.
If she was the 5th justice in a 5-4 court that leaned democratic or even 4-5 court that's probably a good trade. But in this 6-3 court the liberal justices can only persuade and appeal to the conservatives sense of principle to ask them to rise above politics. It's harder to do that if they see you behaving overtly politically.
And if you are thinking ahead the when the court might switch majorities again -- well I suspect we don't know how political and justice alignment will change before then.
--
And before someone tries to claim the court is already just entirely partisan that's obviously not the case. Consider outcomes like Obergerfel or the vast number of Trump era regulations these same justices voted to strike down. Many of which it seems clear they might have appreciated at a policy level.
Yes, everyone is biased and just like it's hard to release a guilty man or keep an innocent one in prison to apply procedural precedent it's hard to rule against your policy preferences but it does happen and when you can't hope to get a majority that's all you have to appeal to.
This is an interesting point, but I think the "retiring when you like the president" norm has been around for decades. During the Reagan era Thurgood Marshall told one of his clerks "If I die, prop me up and keep on voting", though even he gave up during the Bush term when he thought it would be impossible to survive Republicans. Sandra Day O'Connor complained on 2000 election night that she wanted Bush to win, apparently because she wanted to be replaced by a Republican. A couple of Democrat-appointed justices retired early in Clinton's term, Stevens (by then in the liberal branch) retired almost immediately after Obama took office etc. etc.
Appraising justices for survival is also not new. Bill Clinton wanted to appoint Richard Arnold to the court, but the appointment was scuppered when a top cancer doctor appraised Arnold's medical history (he'd had previous cancer) for the White House and concluded that Arnold was a high risk of dying young. Breyer was appointed instead and indeed Arnold died in 2004. In other words, for decades justices have timed retirements and Presidents have made appointments on the basis of partisan control, and this hasn't automatically led to Justices making partisan decisions. There's no new precedent we're setting here.
Yeah, this is one of those things where I totally agree with you in the abstract, but it’s very clear that all justices are mostly partisan most of the time, and that’s been true for a long while. Giving up on a lever of power out of idealism is a ticket to irrelevancy - the conservative legal movement certainly doesn’t see it that way.
I have never understood this nonsensical argument that because conservatives have a 6-3 supermajority, liberals should not care about possibly losing another seat. It makes no sense at all.
In a 4-5 L-C court like we had before Ginsburg died, the way the liberal side "won" a case was by holding the 4 liberals and bringing one conservative over. Didn't always happen, of course, but it sometimes did. Advocates would often go in targeting tailoring their arguments to the conservative justice they thought was most gettable, which varied by case. It meant there was at least hope.
IN the 3-6 court, liberal advoactes need to bring 2 justices over, which is so much harder. But it does happen on occasion, such as Allen v Milligan, the voting rights case where they got Roberts and Kavanaugh.
In a hypothetical 2-7 court, they would need to bring 3, which is next to impossible. It also means changing the balance of the court is basically out of reach. If Biden is reelected, there is at least a chance that he will get to replace a conservative justice and bring the court back to 4-5, more workable numbers.
Obergefell was decided 5-4 and the one Republican-appointed justice who joined the liberals has since stepped down and been replaced by someone vastly more conservative. How is it possibly evidence of a non-partisan court?
For sure! Ron Brownstein was saying the other day that Dems might lose the Senate until the end of the decade. I thought for sure that she would announce her retirement the day after the end of the session since her last dissent was so angry.
You read my mind on the age thing -- I just said the same thing on your last very good post, without realizing you were going to echo my thoughts XD
... If Pelosi and Shumer and other senior democrats turn on Biden for his age, they risk exposing themselves as hypocrites. Further, I think the age of senior Democrats could turn into a real liability going forward as this issue gains traction, and their exposure will only increase going forward. The narrative is really bad: "democrats are old, slow, and unable to respond to today's issues." This is clearly already an issue with the senate, where it sure looks like leadership is too myopic to forcefully fight against the myriad forces of authoritarianism. If Biden stays in now, these problems only get worse from here.
I hate all of this so much. We’re being driven off the cliff by a bunch of stubborn old fucks who just lost it.
OMG JOSH HOW CAN U
THOMAS AND ~~SCALIA~~ ALITO SHOULD RETIRE!!!21124four
SMS FOREVER 💅💖👠😎
Josh is absolutely right that Sotomayor SHOULD retire, for the reasons he gives.
But I'm going to rain on the parade and say that she is almost certainly not going to retire. The most typical time for a justice to announce their retirement "on confirmation of my successor" is immediately following the end of a term, when there are no pending cases and no arguments being heard for a couple of months.
Anyway, the court issued its final orders list of the term on July 2. It's been 10 days with no announcement. From that I surmise that she is not going to retire - if that had been her intent the announcement would have been made on July 2nd or 3 rd or 8th.
Sorry, all.
If there's one thing the left has been right about, it's that we truly are the "Do Nothing Democrats". We are so do-nothing that we would rather sit in our seats until we fucking die no matter the consequences and we will support anyone else who wants to do so.
Suppose you could get her replacement through the Senate (less than certain now) then you cement in an additional liberal justice for 40 years at the cost of eroding the norm that SCOTUS justices aren't supposed to be overtly partisan or concerned about outcomes a bit more.
If she was the 5th justice in a 5-4 court that leaned democratic or even 4-5 court that's probably a good trade. But in this 6-3 court the liberal justices can only persuade and appeal to the conservatives sense of principle to ask them to rise above politics. It's harder to do that if they see you behaving overtly politically.
And if you are thinking ahead the when the court might switch majorities again -- well I suspect we don't know how political and justice alignment will change before then.
--
And before someone tries to claim the court is already just entirely partisan that's obviously not the case. Consider outcomes like Obergerfel or the vast number of Trump era regulations these same justices voted to strike down. Many of which it seems clear they might have appreciated at a policy level.
Yes, everyone is biased and just like it's hard to release a guilty man or keep an innocent one in prison to apply procedural precedent it's hard to rule against your policy preferences but it does happen and when you can't hope to get a majority that's all you have to appeal to.
This is an interesting point, but I think the "retiring when you like the president" norm has been around for decades. During the Reagan era Thurgood Marshall told one of his clerks "If I die, prop me up and keep on voting", though even he gave up during the Bush term when he thought it would be impossible to survive Republicans. Sandra Day O'Connor complained on 2000 election night that she wanted Bush to win, apparently because she wanted to be replaced by a Republican. A couple of Democrat-appointed justices retired early in Clinton's term, Stevens (by then in the liberal branch) retired almost immediately after Obama took office etc. etc.
Appraising justices for survival is also not new. Bill Clinton wanted to appoint Richard Arnold to the court, but the appointment was scuppered when a top cancer doctor appraised Arnold's medical history (he'd had previous cancer) for the White House and concluded that Arnold was a high risk of dying young. Breyer was appointed instead and indeed Arnold died in 2004. In other words, for decades justices have timed retirements and Presidents have made appointments on the basis of partisan control, and this hasn't automatically led to Justices making partisan decisions. There's no new precedent we're setting here.
Yeah, this is one of those things where I totally agree with you in the abstract, but it’s very clear that all justices are mostly partisan most of the time, and that’s been true for a long while. Giving up on a lever of power out of idealism is a ticket to irrelevancy - the conservative legal movement certainly doesn’t see it that way.
The cost of eroding the norm is infinitely lower than the cost of an actual conservative justice in that seat.
I have never understood this nonsensical argument that because conservatives have a 6-3 supermajority, liberals should not care about possibly losing another seat. It makes no sense at all.
In a 4-5 L-C court like we had before Ginsburg died, the way the liberal side "won" a case was by holding the 4 liberals and bringing one conservative over. Didn't always happen, of course, but it sometimes did. Advocates would often go in targeting tailoring their arguments to the conservative justice they thought was most gettable, which varied by case. It meant there was at least hope.
IN the 3-6 court, liberal advoactes need to bring 2 justices over, which is so much harder. But it does happen on occasion, such as Allen v Milligan, the voting rights case where they got Roberts and Kavanaugh.
In a hypothetical 2-7 court, they would need to bring 3, which is next to impossible. It also means changing the balance of the court is basically out of reach. If Biden is reelected, there is at least a chance that he will get to replace a conservative justice and bring the court back to 4-5, more workable numbers.
Obergefell was decided 5-4 and the one Republican-appointed justice who joined the liberals has since stepped down and been replaced by someone vastly more conservative. How is it possibly evidence of a non-partisan court?
The claim isn't that the court isn't at all partisan. Merely that it could be moreso and the left can't stop that with votes.
Term limits for everyone….
Or someone could do something that could actually happen, like you know, Sotomayor could retire.
For sure! Ron Brownstein was saying the other day that Dems might lose the Senate until the end of the decade. I thought for sure that she would announce her retirement the day after the end of the session since her last dissent was so angry.
You read my mind on the age thing -- I just said the same thing on your last very good post, without realizing you were going to echo my thoughts XD
... If Pelosi and Shumer and other senior democrats turn on Biden for his age, they risk exposing themselves as hypocrites. Further, I think the age of senior Democrats could turn into a real liability going forward as this issue gains traction, and their exposure will only increase going forward. The narrative is really bad: "democrats are old, slow, and unable to respond to today's issues." This is clearly already an issue with the senate, where it sure looks like leadership is too myopic to forcefully fight against the myriad forces of authoritarianism. If Biden stays in now, these problems only get worse from here.
https://open.substack.com/pub/joshbarro/p/like-bidens-dogs-the-age-story-will?r=2bczu1&utm_campaign=comment-list-share-cta&utm_medium=web&comments=true&commentId=61765413