Justice Sotomayor’s health isn’t the real problem for Democrats − winning elections is

Winning on Election Day is the best path for any political party to remake the Supreme Court. Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images

It almost sounds like a bad joke: What did the 78-year-old male senator say to the 69-year-old female justice?

“RETIRE!”

That’s effectively what happened recently when U.S. Sen. Richard Blumenthal of Connecticut suggested that Sonia Sotomayor – the first Hispanic and third woman Supreme Court justice – retire so that President Joe Biden could appoint a younger and presumably healthier replacement.

Blumenthal is not alone. Fearing a repeat of Justice Ruth Bader Ginsburg’s death in September 2020 — just weeks before Election Day — progressives such as Josh Barro, Mehdi Hasan and Nate Silver want to ensure that if Donald Trump does defeat Biden in November, he would not have another opportunity to replace a departed liberal justice with a young conservative ideologue.

If Sotomayor is indeed ill, she could justifiably choose to retire. But such calls are not clear-eyed assessments of the justice’s health. Blumenthal and the progressive columnists calling for Sotomayor’s retirement aren’t medical doctors who have reviewed the justice’s records.

Instead, in my view as a political scientist who studies the Supreme Court, these calls are gimmicks really designed to keep a seat on the Supreme Court in the hands of a liberal justice.

Democratic Sen. Richard Blumenthal of Connecticut has urged Sonia Sotomayor to resign from the Supreme Court.
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Long tenure is a problem

Don’t get me wrong. As I write in my new book, “A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People,” the increasingly long tenure of justices is a serious problem for American democracy. The confirmation of younger justices who stay far longer than they once did prevents the court’s membership from changing organically.

Consider, for example, a hypothetical I pose in my book. Justice Clarence Thomas once said that he intends to serve until he is 86 years old because, as he put it, “The liberals made my life miserable for 43 years, and I’m going to make their lives miserable for 43 years.”

If Thomas, who at 75 is the oldest sitting justice, is able to fulfill that promise and no younger justice leaves the court before him, the U.S. would not see another vacancy until 2034.

A court unchanged for 12 years would be unprecedented in American history. This is just one of the factors that has deepened the “democracy gap” between the justices and the people, which I define in the book as “the distance between the court and the electoral processes that endow it with democratic legitimacy.”

Some reforms would prevent justices from remaining on the high bench for three-plus decades, on average. But publicly requesting an ideologically aligned justice to retire isn’t one of them. It isn’t likely to work, and in the case of Sotomayor, it has been viewed as sexist.

Perhaps more importantly, it misses the point.

Win elections, shape the court

When it comes to the Supreme Court, progressives are now in the position where conservatives found themselves for many years. They’re on the outside looking in.

Instead of advancing gimmicks that are unlikely to work, progressives could take a page from the playbook of conservatives who learned from liberals of the previous era: Take the argument to the people.

Winning on Election Day is the best path for any party to remake the court. Recall how the conservatives came to dominate the court. In election after election, Republican presidential nominees rallied conservative voters to the polls by critiquing the court’s most politically divisive decisions, such as Roe, and promising a different type of justice if given the opportunity to fill a seat.

Winning on Election Day is the best path for a political party to remake the Supreme Court.
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Democrats often stayed silent about the Supreme Court during these campaigns, preferring to motivate voters to the polls with other issues. A 2016 exit poll question asked respondents about the importance of Supreme Court appointments in determining their vote for president. Twenty-one percent answered that it was “the” most important issue for them. And significantly, 56% of that 21% supported Trump, 15 percentage points more than those who backed Hillary Clinton.

In fact, when Trump named Neil Gorsuch as his first high court nominee mere days after his presidential inauguration, he highlighted this data, saying that “millions of voters” had supported him based on his promise to appoint conservatives to the court.

Voters are key

Progressives have already shown that the politically astute response to the conservative Supreme Court and its decisions isn’t to go after one of their own. It is to take advantage of the great distaste many Americans have toward some of the court’s decisions, particularly its 2022 Dobbs ruling uprooting Roe.

Just weeks after the Dobbs decision, Kansans overwhelmingly rejected a proposed constitutional amendment that would have denied women a right to obtain an abortion in their state. In the 2022 midterm elections, the expected red wave turned into a ripple as Democrats highlighted the abortion issue. And as the 2024 campaign season heats up, Democrats are primed to highlight their pro-Roe views to rally voters to the polls.

History shows that parties can win elections after losing the Supreme Court. Those parties have done so by strategically focusing on convincing voters to support them, not persuading justices to retire.

Kevin J. McMahon does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.