Her Offices During Good Behaviour: SCOTUS Retirement and Democratic Fear

In September 2020, Justice Ruth Bader Ginsburg passed away from metastatic cancer of the pancreas. The day after her passing, X (Formerly Twitter) user @alexandrawlee posted that her 10-year-old daughter, with tears in her eyes, did the Wakanda pose from the Disney movie Black Panther and said: “#Ruthkanda Forever” [1]. Despite its age, #Ruthkanda Forever has lingered in the cultural memory and online legacy of RBG’s death. 

As solemn as her death was, it was not unexpected. During the Obama Administration, calls for RBG to retire arose as her age and health led to concerns about her being replaced by someone more right-leaning [2]. The main fear was about someone who would overturn Roe v. Wade. These fears were realized two years after her passing, with her replacement Amy Coney Barett ruling with the majority in Dobbs v. Jackson Women’s Health Organization [3]. With the growing partisanship of the Supreme Court, there have been increased concerns that older figures within the liberal bloc may not be able to exercise their duty as Justices. Most notably, the concerns surround Justice Sonia Sotomayor, who is 70 years old and living with type 1 diabetes [4]. These calls reflect the evolution of partisan politics within the nomination of Supreme Court Justices in a post-Trump era, establishing fear and reworking the playbook for Democrats especially. With growing concerns of right-wing influence on the Court, how we view life tenure and the nomination has changed significantly; the call for Justice Sotomayor to retire is not a repeat of RBG. However, as history often does, it rhymes. 

To understand the call for Sotomayor to retire, one must look before even Ginsburg but to Antonin Scalia. Scalia, a Justice nominated by President Ronald Reagan in 1986, served until he died in 2016. When Scalia died, President Barack Obama appointed Merrick Garland. Important to note here is the unusual nature of a death on the Court. According to Todd Peppers, a professor at Washington and Lee University, "Dying this suddenly on the bench is the exception, not the rule, for the justices in the twentieth century,” with Chief Justice William Renquhist dying of a heart attack in 2006 being the last passing on the bench [5]. This is all to say, while not unprecedented, the death of Scalia was indicative of a new legal culture around the Supreme Court. Justices are appointed for life, “and shall hold their Offices during good Behaviour” as detailed in Article III, Section I of the Constitution [6]. Before this, Justices did not actually serve for life. 

Justices David Souter, Anthony Kennedy, and Stephen Breyer all retired from the Court but at a time that was more politically advantageous. Justice Souter, despite his appointment by President George H.W. Bush, was decidedly liberal in his rulings and was replaced with Sonia Sotomayor. Justice Kennedy was replaced by further right Brett Kavanaugh and Justice Stephen Breyer’s vacancy was filled with Ketanji Brown Jackson. Returning to Scalia, the failure to appoint Merrick Garland set a dangerous precedent between the executive and judicial branches. At the time of Garland’s nomination, Obama was in the last year of his second term. With an election only a few months away, Republicans declined to hold a hearing. Despite being appointed by a Democrat, Garland is a centrist and less ideologically swayed than other Justices Obama could have nominated. Garland was the most conservative of the three major candidates considered by Obama [7]. The first was Srikanth Srinivasan, the current Chief Justice of the D.C. Court of Appeals [8]. Second was Jane Kelly, an Article III Judge on the Court of Appeals of the Eighth Circuit [9]. With an Obama appointee, the Supreme Court would have been a Democratic majority for the first time since the 1970s with President Nixon’s appointment of Harry Blackmun [10]. Republicans blocked Garland for 293 days, until the next election and until his nomination expired. In turn, this allowed for Neil Gorsuch to be nominated and confirmed by newly-elected President Trump. From this point forward, the Supreme Court had grown polarized enough that partisan politics would prevent nominations and allow for vacancies until politically useful. Lifetime tenure on the Supreme Court is now shaped not only by the Justices’ personal decisions but also by the strategic interests of political parties.

Ruth Bader Ginsburg’s decision to remain on the bench until her passing has been widely criticized, as it reflected the precedent set by Garland’s blocked appointment. During the Trump term, it’s unlikely that a democrat would be added to the Court. However, her inability to be replaced during the Obama administration has led to a reflection upon her legacy. These are most prominent within the context of Roe v. Wade. Stanford Law Professor Michelle Dauber stated on RGB’s choice to stay that, “She didn’t just gamble with herself. She gambled with the rights of my daughter and my granddaughter. And unfortunately, that’s her legacy. I think it’s tragic” [11]. RGB had an almost mythical status, she was not just an icon of those interested in law: she evolved into a pop culture image. Starting with the Tumblr account @notoriousrbg, RBG was seen as an icon of feminism within the American government as children’s books, SNL parodies, and appearances on the Late Show with Stephen Colbert transformed her into a celebrity [12]. By the time Notorious RBG: The Life and Times of Ruth Bader Ginsburg, the best-selling book by pundit Irin Carmon and law student/owner of the Tumblr account Shana Knizhnik which helped popularize the nickname was released, Ginsberg was exalted in the public eye. As people have confronted her reputation, they note that her failure to retire and allow for a Democrat to replace her during the Obama administration may have been selfish but could not be remedied during the Trump administration. Justice Sotomayor has the chance to do what RBG could not, but has outwardly refused to and sets up a similar problem. 

Sotomayor and Ginsburg are not in the same conundrum but share similar worries from Democratic voters. For starters, Sotomayor is healthier than RBG. Famously battling cancer while ruling, RBG was unlikely to be able to serve until a Democrat could replace her during the Trump term. Although Sotomayor has made comments about being “tired”, this is not a tangible reflection of her health. She told Erwin Cherminsky, Dean of UC-Berkeley Law, “Cases are bigger. They’re more demanding. The number of amici are greater, and you know that our emergency calendar is so much more active” [13]. Her type-1 diabetes compounds this as people have equated it to her health failing. Maria Town, the president of the non-profit American Association of People with Disabilities, has described these concerns as “ableism, pure and simple” against those fighting diabetes [14]. There is a stark difference between living with diabetes which she has been controlling since childhood versus cancer. The Ginsburg cult of personality looms over Sotomayor. As similarly liberal justices, the two often agreed. They ruled the same in 93.1% of cases [15]. There is unease about the future of the Democratic party; the loss of the executive, legislative, and judicial branches in the 2016 and 2024 elections have caused Democrats to find ways to negate and hold onto the power they still hold. Justice Sotomayor has no plans to retire, but calls for her to amongst Democrats show how the tide has changed on the Supreme Court. The Supreme Court has always been political; now, it is partisan beyond what America has known. 

It is unlikely for Sotomayor to have her own #RuthkandaForever moment. Despite similar leaning views to her contemporary, her legacy has been far more bureaucratic. The first case she ever ruled on was Citizens United v. FEC, the landmark campaign finance case that ruled that corporations carry free speech under the First Amendment [16]. She has grown within the cultural consciousness for her sharp and piercing dissents, such as in Trump v. United States with the now famous line: “If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent” [17]. If replaced by a conservative, the Supreme Court will be further out of reach for the Democrats at a 7-2 breakdown.

Sources:

1. Jake Christie, RuthKanda Forever!, Museum of Twitter, #0004 (July 10, 2024), https://t.co/jgS2EZYphf (last visited Nov. 24, 2024).
2. Joan Biskupic, U.S. Justice Ginsburg Hits Back at Liberals Who Want Her to Retire, Reuters (Aug. 1, 2014), https://www.reuters.com/article/world/us-politics/us-justice-ginsburg-hits-back-at-liberals-who-want-her-to-retire-idUSKBN0G12UZ/ (last visited Nov. 24, 2024).
3. Dobbs v. Jackson Women's Health Org., 597 U.S. ___ (2022).
4. John Fritze, Supreme Court Justice Sonia Sotomayor to Remain at Post as Some Call for Her to Step Down, CNN (Nov. 10, 2024), https://www.cnn.com/2024/11/10/politics/sonia-sotomayor-supreme-court-remain/index.html (last visited Nov. 24, 2024).
5. Jessica Gresko, Scalia's Death in Office a Rarity for Modern Supreme Court, Associated Press (2016), https://web.archive.org/web/20160216080820/http://bigstory.ap.org/article/09e55c6fbd6d41a28a03564f3202ef6b/scalias-death-office-rarity-modern-supreme-court (last visited Nov. 24, 2024).
6. U.S. CONST. art. III, § 1.
7. Julia Edwards & Jeff Mason, White House Narrows Search to Three for Supreme Court, Reuters (Mar. 12, 2016), https://www.reuters.com/article/world/white-house-narrows-search-to-three-for-supreme-court-idUSKCN0WD2LD/ (last visited Nov. 24, 2024).
8. Ballotpedia, Srikanth Srinivasan, https://ballotpedia.org/Srikanth_Srinivasan (last visited Nov. 24, 2024).
9. Ballotpedia, Jane L. Kelly, https://ballotpedia.org/Jane_Kelly (last visited Nov. 24, 2024).
10. Erwin Chemerinsky, What If the Supreme Court Were Liberal?, The Atlantic (Apr. 6, 2014), https://www.theatlantic.com/politics/archive/2016/04/what-if-the-supreme-court-were-liberal/477018/ (last visited Nov. 24, 2024).
11. Michael Schaffer, 'Extraordinarily Self-Centered': As a Roe Reversal Looms, RBG Admirers Wrestle with Her Legacy, Politico (June 10, 2022), https://www.politico.com/news/magazine/2022/06/10/ruth-bader-ginsburg-retire-legacy-00038638 (last visited Nov. 24, 2024).
12. Sara Aridi, How Ruth Bader Ginsburg Lives on in Pop Culture, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/at-home/ruth-bader-ginsburg-pop-culture-rbg.html (last visited Nov. 24, 2024).
13. Interview with Sonia Sotomayor, Supreme Court Justice, in Berkeley, Cal. (Feb. 15, 2024).
14. Sara Luterman, Calls for Sonia Sotomayor to Retire Are 'Ableism, Pure and Simple,' Advocates Say, The 19th (Apr. 10, 2024), https://19thnews.org/2024/04/sonia-sotomayor-retirement-assumptions-diabetes-ableism/ (last visited Nov. 24, 2024).
15. SCOTUSblog, Justice Agreement - All Cases (2020), https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_5_19_23-26.pdf (last visited Nov. 24, 2024).
16. Citizens United v. FEC, 558 U.S. 310 (2010).
17. Trump v. United States, 603 U.S. ___ (2024).