Even with the stunning crash of President Biden’s poll numbers causing panic on the left, I still thought it was a joke when a friend told me there had even been a call for Justice Elena Kagan to retire from the Supreme Court right now — before it’s too late, before her seat could end up being filled by President Convicted Felon (I think that’s what Democrats call the GOP nominee).
But sure enough, this, from Vox’s Ian Millhiser: “Justices Sotomayor and Kagan must retire now.”
I think this is delusional, even as to Justice Sotomayor. But I’m not going to bother arguing about her. Sotomayor is older (she’ll be 70 later this month), and there have been some questions about her health because of diabetes — although she’s lived with that since childhood and she takes care of herself. Unlike the situation with Justice Ruth Bader Ginsburg, who died in 2020 at the age of 87, Sotomayor is not a very old person who has been battling cancer for many years.
But the talk about Justice Kagan is truly nuts. She is 64, which is still her prime in her line of work (and I’m not saying that just because I recently turned 65). More importantly, she is highly effective. She is by far the most influential progressive justice on the court: a collegial, whip-smart jurist and fine writer who grasps the need to build consensus and knows how to do it. As a conservative, I have ruefully marveled at her knack for getting the Court to narrow its decision in cases that might have gone dramatically against her preferences, at how she holds the Court’s textualists to their principles when she fears they might be tempted to indulge their policy preferences, and at how she takes advantage of the premium Chief Justice John Roberts places on consensus rulings rather than closely divided ones.
If I were a progressive, I’d hope that Kagan straps in for another 15 years or more — during which, for all we know, we could have three or four new presidents, from both parties. Kagan is not just a predictable vote on the left-leaning minority of a 6–3 Court (which, some plausibly suggest, may be more like a 3–3–3 Court — something Kagan knows how to exploit). She gains ground that others wouldn’t. If Justice Kagan made way prematurely for President Biden to replace her, he’d be hard-pressed to replace her.