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The Sotomayor and Kagan retirement question

People pause in front of “The Four Justices,” a portrait by Nelson Shanks of the first four female Supreme Court justices, at the National Portrait Gallery in November 2020. (Katherine Frey/The Washington Post)
5 min

Perhaps the most surprising result of the 2022 election was Democrats not only holding the Senate but increasing their majority. We should hardly expect a split Congress to pass much significant new legislation over the next two years, but that expanded margin does matter on one front in particular: confirming judges.

Will it mean President Biden can appoint another Supreme Court justice? People probably shouldn’t hold their breath.

This is a major question for a couple of reasons. One is that Republicans were able to significantly recast both the nation’s highest court and the rest of the judiciary during President Donald Trump’s four years in the White House, and Democrats would very much like to continue clawing the bench back. Another is that Senate Democrats face a very difficult map in 2024, meaning their window to do so could close relatively quickly, even if Biden (or another Democrat) wins the presidential election.

The best-case scenario is that a vacancy opens up on the court’s right flank. But the oldest justice is 74-year-old Clarence Thomas, who is still younger than most retiring justices have been. And justices rarely retire when the opposing party can replace them.

With this environment in mind, some have begun making the case for one of the Democratic-appointed justices to retire — especially the senior liberal justice, Sonia Sotomayor, but potentially Elena Kagan, as well. The idea is that they could be replaced with a younger justice, as Stephen G. Breyer was replaced by Ketanji Brown Jackson last year (and as Democrats wish they had been able to do with Ruth Bader Ginsburg). They could at least solidify the court’s three liberal slots for decades to come. Among those floating the idea have been Vox and Demand Justice, which spearheaded the “Breyer Retire” effort (but has signaled it won’t mount such a campaign in this case).

“Democrats won’t have a realistic shot at a Senate majority until 2030 or 2032,” Ian Millhiser wrote for Vox. He added: “If Sotomayor and Kagan do not retire within the next two years, in other words, they could doom the entire country to live under a 7-2 or even an 8-1 court controlled by an increasingly radicalized Republican Party’s appointees.”

There’s a lot of supposition going into that argument; much depends on who controls the White House, and a Senate that goes Republican in 2024 wouldn’t necessarily stay that way for six or eight years. But the point stands that the stakes are huge, given the court’s recent rightward shift.

The problem for those advocating this is that both Sotomayor and Kagan would be extraordinarily young retirees for the Court.

Sotomayor is 68 and Kagan is just 62. Breyer, by contrast, was 83 upon his retirement. Both of them would be giving up what could be decades more on the court, and they might just as soon reason they’ll stick around long enough to ensure a like-minded replacement at some future date, even if that is in the 2030s.

They would also be significantly younger than the average retiring justice. Over the past 100 years, the average age of about three-dozen retiring justices was more than 75.

If you exclude those who resigned due to scandal (Abe Fortas) or major health issues (Charles E. Whittaker, Sherman Minton and Mahlon Pitney) or because of other job opportunities in the administration (which probably wouldn’t happen these days), the average retirement age rises to more than 78.

Over the past 40 years, the average retirement age is north of 80.

In fact, over the past 100 years, only one justice in his or her 60s has retired without one of those extraneous factors pushing that way: Potter Stewart, who retired in 1981 at 66. Besides Stewart, about the best recent precedent one could cite is David Souter retiring at 70 in 2009. (Souter was upfront about his hatred for having to live in Washington as much as he did.)

And it’s not just relative youth. Both Sotomayor (13 years on the court) and Kagan (12 years) would also be some of the least-tenured retirees in modern history. Setting aside the unusual cases mentioned above, nobody has retired so soon after joining the court since 1942.

(The cases that weren’t related to health or scandal include Tom C. Clark, who retired because of a conflict arising from his son’s appointment as attorney general; Arthur Goldberg, who retired to become ambassador to the United Nations; and James F. Byrnes, who retired after just more than a year on the court to take on significant positions related to the World War II war effort.)

That’s not to say it can’t or won’t happen. These are unusual times, with the court swinging significantly to the right and justices being well aware of the blame some ascribed to Ginsburg for that. Kagan is young as justices go, but she also appears disillusioned in certain ways. Sotomayor will turn 70 next summer — the same age as Souter when he retired — and has at least earned a full pension.

There is also a clear and demonstrated history of justices retiring with politics in mind. The last seven justices who retired have done so when they could be replaced by the more like-minded political party, and Breyer even acknowledged this was a factor in his decision.

Were either Sotomayor or Kagan to bow out in the near future, though, it would certainly cast a spotlight on the politicization of these vacancies — to the extent that’s not already blatantly obvious. Even more so than Breyer and barring some kind of major health problem, it would be pretty evident what such an unusually early retirement was really about.