One of the least discussed aspects of the interview with President Joe Biden last night was his declaration that two of the nine justices are not long for the Court. The question is which two are facing retirement or the reaper.
In arguing for his remaining as the nominee despite record low polling, the President told ABC’s George Stephanopoulos with certainty that the next president “in going to appoint at least two new appointees.”
That must be uneasy news for the relatively small court that almost of a third will soon pass . . . one way or another.
Liberals have been pushing Sonia Sotomayor to retire, but she has clearly rejected those calls.
On CNN, journalist Josh Barro bluntly wondered why Sotomayor remains on the bench when younger jurists could be brought on to guarantee a liberal vote for years to come. He indicated that many liberals are frustrated with her for not stepping down: “I find it a little bit surprising, given what Justice Sotomayor describes there about the stakes of what is happening before the Supreme Court, that she’s not retired. She’s 69 years old, she’s been on the court for 15 years.”
At 70, Sotomayor shows no signs of mental decline. She has been a highly effective justice, stepping into the vacuum created by the death in 2020 of Justice Ruth Bader Ginsburg. Of course, few ever questioned the “Notorious RBG” in her decision to stay on the Court, despite her much older age and longer tenure. While some of us noted that Ginsburg was taking a huge risk in not allowing then-President Barack Obama to pick a successor, she remained on the Court in spite of medical problems and ultimately was replaced by Justice Amy Coney Barrett.
Ginsburg, however, was almost 20 years older than Sotomayor.
There is no concern for deterioration or death on the bench in Sotomayor’s case. It is simply a matter of swapping out justices like light bulbs before they burn out.
All of the justices are younger than Ginsburg when she passed (and considerably younger than President Biden who is running for a second four-year term).
Justice Thomas, 76.
Justice Alito, 74.
Justice Sotomayor, 70.
Chief Justice Roberts, 69.
Justice Kagan, 64.
Justice Kavanaugh, 59.
Justice Gorsuch, 56.
Justice Jackson, 53.
Justice Barrett, 52.
Justice Clarence Thomas is the oldest, but has not indicated that he is ready to retire. He would likely want to wait for a Republican president.
If history is a measure, he has time. Oliver Wendell Holmes retired at 90.
A recent analysis of the court’s projected composition suggested the next time the majority of justices will be appointed by a Democrat is likely to be around 2065.
I did not find that analysis particularly compelling.
However, I also fail to see how Biden can be certain that 2 of the 9 justices will die or retire. After all, even Thomas is six years younger than Biden.
If he is predicting the death or retirement of Thomas within four years, he would presumably predict his own passing or retirement years ago.
Running on the pledge to replace two departing justices could prove awkward if the justices are reluctant to be replaced or dispatched.
This is not the first time that such premature claims led to the inconvenient lingering of the subjects:
