We have now lived with the consequences of Ruth Bader Ginsburg’s late-life arrogance for more than two years.
In 2014, President Barack Obama was in office and Democrats controlled the Senate, empowering them to confirm a new justice if Justice Ginsburg had left the Supreme Court. Ginsburg was a two-time cancer survivor in her 80s, the oldest member of a 5-4 Court where the right to an abortion — and perhaps even the right to vote in reasonably fair elections — teetered on a knife’s edge.
When she died in the final months of the Trump presidency, Ginsburg told her granddaughters her last desire: “My most fervent wish is that I will not be replaced until a new president is installed.” It amounted to nothing. Ruth Bader Ginsburg’s seat on the Supreme Court, a seat that until recently belonged to the greatest women’s rights lawyer in American history, is now held by her ideological opposite.
Now, eight years later, the question arises: Should Justices Sonia Sotomayor and Elena Kagan, 68 and 62, respectively, do what Ginsburg would not?
Both justices are much younger than Ginsburg was in 2014. There are no reports that either is in ill health (although Sotomayor has diabetes, she’s managed that condition nearly her entire life). Realistically, both justices could probably look forward to a decade or more of judicial service if they desire it. But even a mighty Supreme Court justice cannot overcome the merciless math facing Democrats in a malapportioned Senate that effectively gives extra representation to Republicans in small states.
Barring extraordinary events, Democrats will control the White House and the Senate for the next two years. They are unlikely to control it for longer than that. The 2024 Senate map is so brutal for Democrats that they would likely need to win a landslide in the national popular vote just to break even. Unless they stanch the damage then, some forecasts suggest that Democrats won’t have a realistic shot at a Senate majority until 2030 or 2032. And even those forecasts may be too optimistic for Democrats.
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.
Senate Republicans have made it perfectly clear that they view Supreme Court seats as a political prize that goes to the party that controls both the White House and the Senate. In 2016, when Justice Antonin Scalia’s death created a Supreme Court vacancy during Obama’s final year in office, Republicans invented a new rule claiming that a vacancy that opens in an election year should be filled by the “next president.” They abandoned that made-up rule as soon as it was inconvenient for them, racing to confirm Trump nominee Amy Coney Barrett the week before voters cast Trump out of office.
Meanwhile, the Senate is malapportioned to give extra representation to residents of smaller states dominated by Republicans. In the current, 50-50 Senate, Democratic senators represent nearly 42 million more people than their Republican counterparts. Democrats have a 29-21 seat majority in the 25 most populous states — states that contain nearly 84 percent of the 50 states’ population — while Republicans have an identical 29-21 seat majority in the remaining states.
Yet there are good reasons for Democrats to worry about a future where Republican justices get to serve for decades, while their Democratic counterparts have to rotate out every time it is possible to replace them with another Democrat. Long-serving justices can develop cult followings that expand their legal and political influence far beyond their one vote, much like Ginsburg did in life, and as Justice Clarence Thomas has done among the legal right. And justices who serve for a very long time also develop relationships with their colleagues that they can sometimes use to encourage those colleagues to moderate.
If only Republican justices can benefit from longevity, the Court’s right flank will gain yet another structural advantage over its left.
But, at some point, the advantages of longevity and experience must yield not just to the Senate’s unforgiving math, but to the mathematics of the Court itself. In the Supreme Court, the only number that truly matters is five. It takes five justices to make a majority that can do literally anything they want to US law.
And if Republican appointees capture seven or eight seats on the Supreme Court, it will become effortless for the GOP to find five votes for truly outlandish legal outcomes.
Sotomayor and Kagan will have to look at these risks and counter-risks and make their own calculations — but for the sake of the nation they serve, they cannot simply ignore the very realistic chance that the next two years may give them their only remaining opportunity to leave their seat to someone who shares their liberal democratic values.
Each additional Republican-controlled seat on the Supreme Court endangers more fundamental rights
It is difficult to predict which issues will come before the Court in the coming years, in part because the Court tends to hear more cases brought by conservative activists as its membership moves rightward. In a world where Sotomayor or Kagan is replaced by a Republican president, the Court could hear even more cases attacking the right to vote. It could impose increasingly heavy shackles on Democratic administrations. And it may even strip away more constitutional rights, as it already did with the right to an abortion.
The size of the GOP majority on the Court matters because not every Republican-appointed justice is like Samuel Alito, an almost unrelenting partisan who will reliably advocate for the GOP’s preferred outcome even when he has to make weak legal arguments in order to do so. Most justices do approach the law in ways that occasionally disappoint activists within their own political party, even if they don’t do so very often.
Indeed, the divide within the Court’s GOP-appointed majority was on full display in what may be the most high-profile case of the past half-century: Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court’s decision eliminating the constitutional right to an abortion. That decision produced two competing concurring opinions, both of which point to radically different futures for Americans’ personal and sexual autonomy.
Justice Thomas, for his part, labeled decisions protecting the right to contraception, the right to same-sex marriage, and the right of consenting adults to engage in sexual activity as “demonstrably erroneous.” And he claimed that his Court “should reconsider” whether it should continue to protect these rights.
Justice Brett Kavanaugh wrote a separate opinion where he seemed to disclaim any interest in Thomas’s project. Pointing to many of the same cases that Thomas threatened to toss out, Kavanaugh wrote that “overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
In part because no other justice joined either Thomas’s or Kavanaugh’s Dobbs concurrence, it is difficult to pin down where every member of the Court falls between them, but at least some of the Court’s Republican appointees have signaled that they share at least some of Thomas’s desire to tear away existing rights.
Alito’s dissent in Obergefell v. Hodges (2015), the marriage equality decision, tracks the reasoning of his majority opinion in Dobbs so closely that it’s hard to imagine that he would not vote to overrule Obergefell if given the chance. Similarly, Justice Neil Gorsuch dissented from the Court’s decision in Pavan v. Smith (2017), which rejected an attempt to water down Obergefell’s holding that same-sex couples are entitled to marry “on the same terms and conditions as opposite-sex couples.”
Barrett, meanwhile, has largely played her cards close to her chest since joining the Court. But, as a law professor, she signed a 2015 letter to Catholic bishops endorsing the church’s anti-LGBTQ position on “marriage and family founded on the indissoluble commitment of a man and a woman.”
Realistically, in other words, there are almost certainly at least two votes — and potentially as many as four votes — on the current Court to overrule Obergefell. That means that the constitutional right to marry whoever you choose could be in danger if Republicans gain just one more seat on the Court.
Even more troublingly, the Supreme Court has spent the past several years concentrating power within itself. It invented a legal doctrine known as “major questions,” for example, which is mentioned nowhere in the Constitution or in any statute, and which in effect enables the Court to veto any federal regulation that five justices dislike. That means that a Court with five justices from the GOP’s far right wing could tear through the Code of Federal Regulation, even if relatively restrained justices like Kavanaugh or Barrett vote to keep it mostly intact.
Similarly, at December’s oral arguments in Moore v. Harper, a majority of the Court seemed likely to give itself the power to overrule a state supreme court’s interpretation of the state’s own election law, at least in “outrageous” cases when five justices believe that the state mangled its own interpretation of its law. But the question of what constitutes an “outrageous” case will have to be determined by each justice, and several members of the Court have already signaled that they would set the bar very low.
On the current Court, the six-justice Republican majority has largely split into two factions. Thomas, Alito, and Gorsuch make up a deeply reactionary bloc who demand avulsive changes to the law on the fastest possible timeline.
Meanwhile, Chief Justice John Roberts, Kavanaugh, and Barrett make up a faction that favors most of the same policy outcomes pushed by the Alito bloc, but with some significant exceptions. Kavanaugh, for example, wanted no part of an opinion Alito wrote that, in Kavanaugh’s words, would insert the judiciary “into the Navy’s chain of command, overriding military commanders’ professional military judgments.” This middle bloc of justices also tends to move more incrementally, sometimes pushing to achieve the conservative movement’s preferred outcomes over a timeline of years rather than a few months.
But there are good reasons to fear that future Republican appointees to the Supreme Court will look more like Thomas and Alito than like Roberts or Kavanaugh. One is that Trump largely had to look to judges appointed by President George W. Bush to find candidates for the Supreme Court, and the median Bush judge was much more moderate than the typical Trump judge. The next Republican president, by contrast, will have a wide array of deeply reactionary Trump appointees to choose from — judges like Neomi Rao, Andrew Oldham, or James Ho, who make Brett Kavanaugh look like Bernie Sanders.
In a world with seven or eight Republican Supreme Court justices, in other words, the Court will likely intrude into more and more areas of American life where it has no expertise and no lawful mandate to do so. It will dismantle rights that millions of Americans depend on. And it is likely to manipulate the electoral system to keep the Court’s ideological allies in elected office.
The price of early retirements
If Sotomayor or Kagan were to die under a Republican president — or, given how Senate Republicans treated moderate Obama Supreme Court nominee Merrick Garland, if Sotomayor or Kagan were to die under a Democratic president and a Republican Senate — it is very unlikely that either could be replaced by a like-minded justice. Indeed, the Garland precedent suggests that Republicans might simply hold the seat open for as long as it took to fill it with an extremist like Gorsuch.
That could be catastrophic for liberal democracy in the United States. But there are also two reasons to hesitate before calling for every Democratic appointee to the Supreme Court to rotate off the Court the minute they can be replaced by a younger Democrat.
Relationships matter
One is the simple fact that relationships matter within an institution made up of only nine people. Shortly after Justice Anthony Kennedy’s retirement drove the Court to the right in 2018, Justice Kagan told journalist Dahlia Lithwick of her plans to keep her colleagues from doing too much damage to the law.
The trick, Kagan said, is to take “big questions and make them small.” Find ways to dispose of cases on narrow procedural grounds, or to dismiss them for lack of jurisdiction. If that won’t work, try to find five votes to hand down a narrow substantive rule that will have little impact on future cases.
Kagan also named the Republican appointee that she thought was most likely to be open to her appeals. “I’m a huge fan of the Chief Justice,” she said, referring to Roberts. She added that “I think he cares deeply about the institution and its legitimacy.”
For a while, before Ginsburg’s death gave Republican appointees a supermajority and rendered Roberts’s vote irrelevant in the biggest cases, Kagan’s strategy seemed to work. In the Court’s 2019-20 term — its last full term with Ginsburg — the Court handed down a string of narrowly decided liberal victories.
Roberts cast a surprising vote to preserve abortion rights, for example, largely because the issue before the Court in June Medical Services v. Russo (2020) was identical to the one before the Court in a previous decision supporting abortion rights. The Court also kept the Deferred Action for Childhood Arrivals (DACA) program, an immigration program created by President Obama, alive by pointing to a paperwork error by the Trump administration.
Indeed, Kagan appeared to be so successful in leveraging her relationship with the chief that the conservative Wall Street Journal’s editorial board mockingly labeled her “Chief Justice Elena Kagan” and disparaged what it labeled “the Kagan Court.”
If Thomas or Alito, both of whom are in their 70s, leaves the Court in the next two years, then President Biden would likely replace them with a liberal justice, and Roberts would become the Court’s pivotal vote once again. Should that happen, Democrats may regret what happens next if Justice Kagan is no longer around to persuade the chief to seek moderation.
Long-serving justices can build a movement
For most of his time on the Supreme Court, Justice Thomas was largely ignored by his colleagues — and for good reason. He has a penchant for opinions claiming that foundational legal principles should simply be tossed out.
Thomas’s concurring opinion in United States v. Lopez (1995), for example, closely tracks the reasoning the Supreme Court used in an infamous 1918 decision striking down federal child labor laws. He’s repeatedly called for the Court to strip millions of Americans of their free speech rights — including a 2019 opinion calling on his Court to overrule a seminal precedent ensuring that freedom of the press continues to exist — while simultaneously reading the First Amendment expansively to protect wealthy political donors. He’s also claimed that state governments should be allowed to establish an official state church.
Yet, while Thomas spent more than two decades writing lonely, nutty opinions that his fellow justices rarely joined, he slowly became the most consequential legal thinker in the United States, largely because of the way that students are educated in law schools.
A year before his death, Justice Antonin Scalia explained why he so often wrote punchy, unforgettable opinions where he might dismiss an opponent’s argument as “pure applesauce” or “argle-bargle.” “I’ve given up on the current generation — they’re gone, forget about them,” Scalia said in 2015. “But the kids in law school, I think there’s still a chance,” he added. “That’s who I write my dissents for.”
Law school textbooks are often referred to as “casebooks” because they largely compile canonical or anti-canonical court decisions, including both majority opinions and dissents. Classroom instruction frequently involves a debate over the relative merits of these majority and dissenting views. What Scalia understood is that, if he wrote engaging and memorable dissents, generations of law students would read them while they were forming their opinions about the law. And someday, some of those students would become judges — or even justices with the power to turn Scalia’s dissents into majority opinions.
But it was Thomas, not Scalia, who perfected this strategy. Liberal law students read Thomas’s opinions and often wondered how anyone could possibly agree with him. But the most reactionary aspiring lawyers read them and saw a visionary. At a time when most judicial conservatives still emphasized judicial restraint, Thomas called for the courts to do more. Strike down more laws. Cast aside celebrated precedents. Place a yoke around the neck of the law and force it to labor for the conservative movement.
And Thomas’s bold activist vision for the courts is now the dominant vision within the Republican Party. This vision drives everything from the seemingly endless barrage of lawsuits targeting Obamacare to the Court’s decision to give itself a veto power over the entire US administrative state. More than one in eight of Trump’s appointees to the federal appellate bench were Thomas clerks. A 2018 Associated Press report found that 22 former Thomas clerks “either hold political appointments in the Trump administration or have been nominated to judgeships by Trump.”
Thomas’s growing popularity among legal conservatives is also a second reason to fear that the next Republican president’s Supreme Court appointments could be more reactionary than Trump’s.
But Thomas’s tremendous influence on the conservative legal movement’s ambitions were not apparent until his third decade on the Court. It takes time to build a movement out of the handful of law students in every constitutional law class who read Thomas’s opinions and said to themselves, “Why not?”
This kind of sustained movement-building around a central leader simply is not possible if that leader has to quit their job right when they are starting to master it. It is impossible to know now whether Sotomayor or Kagan will, 20 years from now, be seen as a visionary who ushered in a new era of liberalism in much the same way that Thomas built a movement for reactionary judicial supremacy. But that certainly won’t happen if they leave the Court prematurely.
So what should Sotomayor and Kagan do?
The good news, for Obama’s two appointees to the Supreme Court, is that they do not need to decide whether to retire today. Barring unlikely events, such as the death of two Democratic senators in states with Republican governors, Democrats will control the White House and the Senate for the next two years. That’s two entire years when they can also confirm Supreme Court justices if a vacancy arises on the Court.
Realistically, however, Democrats need to win a crushing victory in 2024 to even have a chance at holding on to the Senate. Democrats need to defend incumbents in the solidly red states of Montana, West Virginia, and Ohio. They also need to figure out what to do about Sen. Kyrsten Sinema (I-AZ), an Arizona incumbent with a bathyspheric approval rating that could preclude her winning reelection — but whose recent decision to quit the Democratic Party allows her to run as a spoiler candidate who could throw Arizona’s next Senate race to the Republican.
It is certainly possible that President Biden — like another president who struggled with sky-high inflation during his early presidency, then cruised to reelection as the economy improved — could win reelection by such a commanding margin that Republican Senate candidates will be at a disadvantage in 2024.
Barring a Democratic landslide, however, the party’s opportunity to fill a Supreme Court seat will likely come to an end in 2025.
Nor is the Democratic Party’s misery in the Senate likely to solve itself anytime soon. As Stanford political scientist Jonathan Rodden explains, “as you go from the center of cities out through the suburbs and into rural areas, you traverse in a linear fashion from Democratic to Republican places.” So long as this urban/rural divide exists, Republicans are strongly favored to control the Senate because of their dominance in low-population states.
So Sotomayor and Kagan should certainly keep a close eye on the polls in 2024, and may be able to justify remaining on the Court if those polls predict a dominant electoral year for Democrats. But if they remain for too long, the consequences for the law — and for the nation — could be cataclysmic.
Ian Millhiser
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