Vox writer Ian Millhiser slammed late Supreme Court Justice Ruth Bader Ginsburg’s “arrogance” and called on sitting Justices Elena Kagan and Sonia Sotomayor to consider retiring rather than risk the possibility of an unfavorable Senate makeup later.
“Sotomayor and Kagan need to think about retiring,” the headline read, and the sub-headline added the reason for his deep concern. The Senate, he alleged, was a “fundamentally broken institution” — and for that reason, Democratic justices needed to plan accordingly.
“We have now lived with the consequences of Ruth Bader Ginsburg’s late-life arrogance for more than two years,” Millhiser wrote to open the piece, and then he went on to detail why he believed Ginsburg should have retired while former President Barack Obama was still in the White House and had a friendly Senate.
The problem he outlined — at least as far as Sotomayor, 68, and Kagan, 62, are concerned — was that Democrats could very well lose the Senate in two years’ time, and he worried that it would be a long time before the balance of power shifted in their favor again.
But then Millhiser got to the crux of the matter, revealing that his real problem was not actually the “so brutal” Senate map expected in 2024 — rather, he took issue with the Senate’s designated role as it was written into the U.S. Constitution: to balance the power of the states with the power of the people.
Calling the Senate “malapportioned,” he argued that the Constitution gave “extra representation to Republicans in small states” — and that was the real reason that Democrats were unlikely to regain the majority (according to his math) until 2030 or even later.
“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,” Millhiser complained.
Slate’s Mark Joseph Stern agreed with Millhiser, saying, “I think Sotomayor and Kagan are brilliant justices and I’d be sad to see them go. But Ian is indisputably correct about the political calculus here. After 2025, Democrats may not hold the White House and the Senate for a decade+. This argument should be taken seriously.”
I think Sotomayor and Kagan are brilliant justices and I’d be sad to see them go. But Ian is indisputably correct about the political calculus here. After 2025, Democrats may not hold the White House and the Senate for a decade+. This argument should be taken seriously. https://t.co/VU0vQWPCxa
— Mark Joseph Stern (@mjs_DC) December 21, 2022
And while a fair number of Democrats agreed with his assessment, some also pointed out the fact that Ginsburg had been older and her health had not been as good when she opted to remain on the bench. The late justice had also made it clear that she would not bow to popular opinion when it came to calls for her retirement, saying, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”