In a provocative opinion piece entitled, “Justices Sotomayor and Kagan must retire now,” Ian Millhiser, a senior correspondent at Vox writes that he is “begging the justices to learn from Ruth Bader Ginsburg's historic mistake.” (Ginsburg died during the last Trump administration and was replaced by conservative justice Amy Coney Barrett.) Millhiser, who sees it as likely that Donald Trump will return to the White House next year, outlines the risks that the seats of Sotomayor or Kagan will be filled by a Trump appointee. “Unless Sotomayor (who turns 70 this month) and Kagan (who is 64) are certain that they will survive well into the 2030s, now is their last chance to leave their Supreme Court seats to someone who won’t spend their tenure on the bench tearing apart everything these two women tried to accomplish during their careers,” he writes.
Millhiser has opined on this issue before. Shortly after the 2022 midterm elections, he published an essay much like this one, arguing that “Sotomayor and Kagan need to think about retiring.” In it, he acknowledged that “Democrats will pay a price if their justices must shuffle off the Court whenever they can be replaced by younger versions of themselves, while Republican justices are free to serve for decades.” He writes about one of those prices, that appellate judges form bonds with their colleagues as they spend more time on the bench. “Kagan speaks openly about cultivating a relationship with Chief Justice John Roberts, and there is significant evidence that she’s successfully persuaded Roberts to decide several important cases narrowly instead of handing down a sweeping conservative victory,” Millhiser writes. “Sotomayor sometimes teams up with Gorsuch, the most libertarian of the Court’s Republicans, in criminal justice cases. And there are some early signs that Sotomayor may be forming a productive bond with Barrett. There’s no guarantee that Sotomayor or Kagan’s replacement will be similarly successful in influencing their Republican peers, although that influence will obviously be lost as well if either justice is replaced by a Trump appointee.”