Below is my column in Fox.com on the recent suggestion that Justice Sonia Sotomayor should step aside for a younger justice in the interest of extending a liberal voting block on the Supreme Court. It is part of a growing number of calls for changing the Court that range from buying out justices to sweating them out.
Here is the column:
“I live in frustration ... To be almost 70 years old, this isn’t what I expected.” Those words from Justice Sonia Sotomayor appear to resonate with some liberals, but not in the way intended by the jurist. Some activists and journalists are beginning to nudge Sotomayor to leave the Court in order to be replaced by a younger jurist, much as was done to Justice Stephen Breyer in 2021 and 2022.
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.”
Sotomayor gave her frank assessment of being “tired” and “frustrated” during an appearance at University of California’s, Berkeley. She suggested that the Supreme Court’s conservative majority contributes to her daily burden. It was a notable interview not only for its content but for its moderator, UC Berkeley Law Dean Erwin Chemerinsky.
Chemerinsky previously shocked many in the legal community by denouncing Sotomayor’s six conservative colleagues as “partisan hacks.” In response to Chemerinsky’s probing, Sotomayor took an implied swipe at her colleagues and declared: “I live in frustration. Every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting.”
She added that the workload is overwhelming: “There used to be a time when we had a good chunk of the summer break. Not anymore. The emergency calendar is busy almost on a weekly basis.”
Many clearly would like to see her lessen that load by following the pattern of former liberal colleague, Justice Breyer, who retired in 2022. Demand Justice, a liberal group that has pushed court–packing as a solution to the Court’s conservative majority, drove a billboard truck through the streets of Washington with slogans like “Breyer, retire. Don’t risk your legacy.”
At 69, 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.
The grumbling from the left reflects the raw political calculations that are now commonly applied to the Supreme Court. Justices are treated as cutouts for partisan outcomes; the worth of a justice is now largely seen as her potential longevity rather than her jurisprudence. Sotomayor‘s seat is viewed as a lock for liberals, who want to trade for a new model before the new year (and a possible Republican president)
None of this is surprising in a time when law school deans have called
Seton Hall Law Assistant Dean Brian Sheppard treated such turnovers on the Court in strictly transactional terms, calling for Congress to “buy out” justices by offering them “large sums of money.”
Georgetown Law Professor Josh Chafetz and others are interested in taking a more active approach to making continuation on the Court as unpleasant as possible — at least for conservatives. Chafetz previously declared that the “mob is right” in targeting and harassing justices, and he told a law school panel in 2022 that “I want to suggest that courts are the enemy, and always have been.” He suggested that Congress should retaliate against conservative justices by considering the withdrawal of funding for law clerks or even “cutting off the Supreme Court’s air conditioning budget.”
When the audience laughed at that absurd suggestion, it reportedly triggered fellow panelist and Harvard law profe
Apparently, it is better to do that than wait for some biological clock to toll. By cutting off the air conditioning daily and harassing justices at home nightly, activists may finally induce some jurists to flee the Court.
These are the voices that dominate at some of our leading law schools, teaching students that opposing views should not be tolerated on our highest court. Doerfler is correct about one thing: There is nothing laughable about what they are suggesting. We must decide as a people if we will protect our courts or will reduce their makeup to a simple matter of turning up a thermostat.