As calls increase for Supreme Court Justice Sonia Sotomayor to resign from her position ahead of the 2024 presidential election (thereby allowing President Joe Biden to choose a younger successor to serve on the bench), polling has demonstrated that a plurality of Americans don’t want Sotomayor to quit the Court just yet.
According to an Economist/YouGov poll published this week, Sotomayor has a net-positive favorability rating among American voters of 9 points. Indeed, all three liberal bloc members of the Court have net-positive ratings, while five of the six conservative bloc members have net-negative numbers. (Chief Justice John Roberts has a neutral rating among voters.)
When asked if Sotomayor should retire now, only 31 percent of voters said she should. Forty percent said she shouldn’t retire, while another 29 percent said they were unsure.
Asked about two conservative justices, more voters than not said they wanted them to quit.
Forty-six percent of voters in the poll said Justice Samuel Alito should retire, while only 25 percent said he should remain on the Supreme Court.
As for Justice Clarence Thomas — who has been on the Court since 1991 — a majority of voters (53 percent) said he should quit, while just a quarter of respondents (26 percent) said he should not.
Still, worries over whether Biden will still be president past November are pushing some progressive commentators to call for Sotomayor’s earlier-than-usual retirement.
Sotomayor was appointed by former President Barack Obama in 2009 and will turn 70 in June.
“If [Sotomayor] retires this year, President Joe Biden will nominate a young and reliably liberal judge to replace her,” wrote The Atlantic’s Joe Barro in a recent column.
Barro also said that if Biden nominated someone now to replace her, confirmation of a new justice would be a “slam dunk.”
“Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died,” Barro said.
In a guest column at The Guardian, Medhi Hasan recalled how the late Justice Ruth Bader Ginsburg’s refusal to retire before the 2016 election resulted in the Court going from a 5-4 slim conservative majority to a wider 6-3 majority after her death in 2020. While he praised Sotomayor for her tenure thus far on the Supreme Court, Hasan opined that another shift — to a 7-2 conservative bloc majority, if Trump is elected and Sotomayor’s seat is vacated while he is president — would be catastrophic.
The damage to our democracy from a 7-2 hard-right court would be on a whole other and existential level. Yes, 6-3 has been a disaster for our progressive priorities but there have also been a handful of key 5-4 victories in cases where Roberts plus one other conservative have come over from the dark side. None of that happens in a 7-2 court.
Despite those risks, critics have contended that the idea that Sotomayor should retire is both sexist and ableist.
Slate’s Dahlia Lithwick noted that, by asking Sotomayor to quit, it would potentially begin a process of perpetual replacement of justices at the end of presidential terms.
“It is all well and good to be mad at RBG, but then we just keep replicating that underlying problem, in the form of: We’re gonna vote someone else off the island every election cycle,” Lithwick said. “Because we haven’t learned the lesson that you can pack the court, you can impose term limits, you can do jurisdiction-stripping. You can do systemic reform to change the fact that we live in a monarchy in which we wait for smoke signals to see which of the dauphins will next rule.”
Lithwick went on to characterize demands for Sotomayor to quit as sexist, because they put the responsibility of preserving the Court’s reputation on her. Said Lithwick:
Women have this ‘second shift’ where, after doing their day job, they then go home and do all the dishes and refill all the soap dispensers. And I think there is a profound second shift happening for the women at the court, which is protecting the reputational interests and integrity of the court. … Yes, [the Court’s reputation] falls on the chief justice, but it falls most heavily on the women justices. And the people who just don’t care about how the court looks to the public — overwhelmingly, they tend to be men.
Prominent disability rights activists also lambasted calls for Sotomayor to quit, saying that she is being singled out due to her Type 1 diabetes.
“She is the target of calls to resign because of assumptions about her health as a diabetic,” said Maria Town, president of the nonpartisan American Association of People with Disabilities, adding that it is “ableism, pure and simple.”
Mia Ives-Rublee, director of the Disability Justice Initiative at the Center for American Progress, expressed a similar opinion.
“The call by several prominent progressive figures for Justice Sotomayor to resign at 69, because of her diabetes, are absolutely tied to ableism and the belief that disabled people are always just a step away from death,” Ives-Rublee said.
“I trust that, like all disabled people, she knows best about her body,” Ives-Rublee added. “Bodily autonomy is not just about reproductive rights. It’s about allowing people, including disabled people, to choose how they want to live their lives.”
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