AVELLINO: Sonia Sotomayor must retire from Supreme Court
In 2022, the U.S. Supreme Court decided Dobbs v. Jackson Women's Health Organization. In the landmark case that overruled Roe v. Wade, the Court decided that a Mississippi law eliminating abortion rights after the 15th week of pregnancy, even in cases of rape and incest, was constitutional. It also eliminated the federal protection for everyone across the country.
Six justices ruled in favor of Mississippi, but only five justices voted to overturn Roe.
In an oft-forgotten concurrence written by Chief Justice John Roberts, the most politically-minded of the nine, wrote, "None of this, however, requires that we also take the dramatic step of altogether eliminating the abortion right first recognized in (Roe v. Wade)."
If there had been one more liberal justice on the Court, it is possible that Roe would still be law today. Weaker, maybe, but still around and providing protection to the millions of people living in red states, suffering the consequences of the conservative victory.
But there was not one more liberal justice. The last liberal justice, Ruth Bader Ginsburg, died in 2020 due to complications from cancer.
Ginsburg was asked to retire in 2013 when Democrats controlled the White House and the Senate. Former President Barack Obama invited her to lunch and expressed concerns about Ginsberg's age and partisan control of the U.S. Senate in the future.
Ginsburg was not having it. And now, as a consequence of her gamble, we do not have Roe.
I and many others have been thinking about Ginsburg a lot since last month, when journalist Josh Barro got everybody talking with his blog post titled, "Sonia Sotomayor Must Retire." The article has a lot of politicos discussing whether a pressure campaign is appropriate.
Supreme Court Justice Sonia Sotomayor has been a phenomenal justice since her 2009 confirmation. But she is not indispensable. She is one of many players in a political project that is responsible for maximizing the chances of achieving liberal policy for the country. Her retiring now is the best bet for Democrats to win back the Court as soon as possible.
Politics is as much a game as it is a profession. There are rules that players must abide by, strategies they must choose and payoffs that players can expect to earn if they win.
Winning, to me, looks like Minnesota. After Rep. Judy Seeberger (D-Minn.) won her seat in 2022 by a mere 321 votes, Minnesota Democrats passed free school lunch, legalized marijuana, paid family and medical leave and tighter gun control.
Losing, to me, looks like Florida. Because Gov. Ron DeSantis (R-Fla.) won his seat in 2018 by just 0.4 percent, Florida Republicans passed a six-week abortion ban, permitless concealed carry of firearms law and restrictions on teachers' ability to talk about LGBTQ+ topics.
The margins of victory can be miniscule and the consequences of defeat monumental. It is precisely for these reasons that the Left must be laser-focused on the only question that matters: How am I going to win?
Winning back the Supreme Court means replacing conservative seats and maintaining liberal ones. To appoint a liberal justice to the Supreme Court, Democrats need to control the White House and the Senate. Look at an election map today, and the odds of that happening come 2025 are not great. Democrats are likely to lose the Senate seat in the red state of West Virginia. They also face difficult battles in six swing states.
And they need to win them all. Not just a few. All.
Sotomayor will be 70 years old this year. Presumably, she wants to retire when a liberal jurist can replace her. But because she does not know when that time will come, she is gambling that she will be healthy enough the next time it happens. And she is forcing us to put our chips on the table with her.
How long will she have to wait for that to happen? It could be as soon as next year when she is 71 years old. It could be in six years, which is how long Democrats waited between 2015 and 2021 to control both bodies. She will be 76 years old and probably still traveling with a nurse.
Maybe it will be in nine years, which is how long former Justice Antonin Scalia lasted on the Court after Democrats took the Senate in 2007. She would be 79 years old, which is the same age Scalia unexpectedly died and Republicans were lucky enough to control the Senate to prevent a liberal successor. I cannot guarantee Democrats will be so fortunate.
Or maybe it could be a 14-year drought, which is how long Democrats waited between 1995 and 2009. Given the huge structural advantage Republicans enjoy in the upper chamber, this is not an extremely unlikely outcome. And we would have to pray that Sotomayor is healthy at 84 years old.
If Sotomayor's gamble does not pay off? Republicans will fill her seat or leave it open until they can. Her replacement may be a 40-year-old white man who will inhibit privacy, restrict speech, demolish the wall between church and state, eliminate the rights of prisoners and every other thing about our Constitution that I hold dear. The Court will go 7-2, taking decades longer to reclaim.
That is what I call losing.
If Sotomayor's gamble does pay off? The extraordinary benefit we earn to justify risking a 7-2 conservative Court is … what? Reading dissents written specifically by Sotomayor? Having her lead the liberal minority instead of Supreme Court Justice Elena Kagan or Supreme Court Justice Ketanji Brown Jackson?
Is that reward worth a potential crushing defeat to women's rights, queer rights and immigrant rights for an additional decade and a half?
Reading Sotomayor's dissents may make liberals feel good. So might screaming threats at city councilmembers. The warm glow of moral righteousness is very real and explains a lot of political behavior.
That does not make it smart, nor does that make it right.
Everyone on the Left needs to be playing to win. Everyone has a role to play and the duty to play responsibly. That includes Sotomayor, who has played her role with grace and excellence.
And it is time for a curtain call.
Noble Avellino is a junior in the School of Arts and Sciences majoring in economics and minoring in political science. Avellino’s column, “Noble’s Advocate” runs on alternate Mondays.
*Columns, cartoons, letters and commentaries do not necessarily reflect the views of the Targum Publishing Company or its staff.
YOUR VOICE | The Daily Targum welcomes submissions from all readers. Letters to the editor must be between 350 and 600 words. Commentaries must be between 600 and 900 words. All authors must include their name, phone number, class year and college affiliation or department to be considered for publication. Please submit via email to oped@dailytargum.com and eic@dailytargum.com to be considered for publication.
