Ever since losing control of the Supreme Court to a nominally conservative majority, many of the same liberals who have brazenly called for “packing the court” are now just as brazenly seeking to unpack it.
If ever there was proof that the Left views the Supreme Court as just another legislative body to lobby for their agenda, it’s their shameless efforts to pressure liberal Supreme Court Justice Sonia Sotomayor, 69, to retire before the presidential election in November so President Joe Biden can nominate a younger—and equally or more liberal—replacement.
According to a pair of March 27 articles in The Huffington Post and at AboveTheLaw.com, two leftist law professors are among the loudest voices calling for Sotomayor’s resignation. “I would love to see Sotomayor retire,” one of them, Lucas Powe Jr., a law professor at the University of Texas at Austin, said. “I would love to trade her for a 50-year-old justice.”
That’s because the Left supports what I’ve dubbed “outcome-based adjudication” (akin to outcome-based education). They view an unelected Supreme Court majority—as few as five votes—as a superlegislature for enacting their radical agenda, most of which they can’t get through Congress. (The foremost example of that was the Obergefell v. Hodges ruling in 2015 in which a 5-to-4 majority—including Sotomayor—by judicial fiat legalized same-sex marriage nationwide.)
The Left’s outcome-based adjudication is also reflected in how Sotomayor and the two other current liberal justices, all appointed by Democratic presidents, vote in utterly predictable lockstep on all of the most controversial and consequential issues that come before the high court.
Just as an aside, the same cannot be said of the six moderate and conservative justices, who from time to time stray off the reservation and vote with the liberal bloc—to the consternation of the Right. For example, it was an appointee of a Republican president, then-Justice Anthony Kennedy, who gave the four lockstep liberals on the court at the time the fifth vote in Obergefell.
Similarly, Sotomayor—a 2009 appointee of Democratic President Barack Obama—replaced David Souter, who regularly sided with the court’s liberals, much to the chagrin of the GOP president, George H.W. Bush, who appointed him.
But I digress.
The Left’s push to bully Sotomayor into retirement was inspired by the fear of a reprise of then-Justice Ruth Bader Ginsburg’s unwillingness to resign amid a long-running battle with cancer, which she ultimately lost.
A far-left feminist, Ginsburg refused to step down before the end of Obama’s administration. She was reportedly holding out to be replaced with a like-minded uberliberal justice to be appointed by what she hoped would be the first female president in Hillary Rodham Clinton.
That miscalculation backfired bigly, with Clinton’s 2016 loss to Donald Trump. Ginsburg then sought to outlast Trump’s presidency.
After Ginsburg died at age 87 at the height of the 2020 presidential election campaign, Trump got to replace her with another woman, albeit one much less liberal in Amy Coney Barrett. (That Barrett has been praised for her “surprising independence” by liberal Washington Post columnist Jennifer Rubin is further proof that justices appointed by GOP presidents are far less likely than their liberal counterparts to vote in lockstep.)
Trump’s getting a third pick was more than the Left could bear, especially after then-Senate Majority Leader Mitch McConnell, R-Ky., four years earlier had refused to allow a Senate confirmation hearing or vote on Obama’s nomination of Merrick Garland as the late conservative Justice Antonin Scalia’s replacement in 2016. (Though they criticized McConnell for doing that, had the situation been reversed, Senate Democrats surely would have done the same thing.)
To put the Left’s “Sotomayor must go” campaign in further context, there was no comparable effort by the Right to pressure conservative Justice Clarence Thomas, then 72, to resign during the 2020 campaign—or even during the lame-duck period of Trump’s presidency—even though at the time Republicans still controlled the Senate and could have gotten a younger conservative replacement confirmed and seated.
“Sotomayor has been an outstanding justice, but the Ruth Bader Ginsburg precedent ought to be extremely sobering,” University of Colorado at Boulder law professor Paul Campos was quoted as saying by The Huffington Post.
“The cost of her failing to be replaced by a Democratic president with a Democratic Senate would be catastrophic,” Campos added, making all too clear where he falls on the ideological spectrum.
To date, no Senate Democrats have joined the calls for the self-styled “wise Latina” to step aside—at least not publicly. But that might be only because they dread being hoisted on their own intersectional identitarian political petards.
“[T]hey’ll have to get over their fear of being called racist or sexist or ageist,” wrote Josh Barro in a March 18 article for The Atlantic with a title indicating he has no such qualms: “Sonia Sotomayor Should Retire Now.”
As of now, the only other thing missing in the pressure campaign to get Sotomayor to step down is a version of the Left’s ubiquitous, inane rhyming couplet chants—in this case, “Hey, hey! Ho, ho!/Justice Sotomayor’s got to go!”
In the final analysis, whether Sotomayor stays or goes could come down to two factors: whether she regards herself as irreplaceable as Ginsburg apparently did—and who wins in November.
If it’s Biden, Sotomayor would have the luxury of stepping down at anytime in the ensuing four years. If, however, Trump is returned to the Oval Office and if Democrats lose control of the Senate (which the odds favor this cycle), she could try to outlast his term—or she could quit the court in November, while a lame-duck majority leader, Sen. Chuck Schumer, D-N.Y., could still get her replacement confirmed by the lockstep liberals in his Senate caucus.
Originally published at WashingtonTimes.com
