President-elect Donald Trump’s victory in the 2024 presidential election has sparked speculation about whether Justice Sonia Sotomayor should retire from the Supreme Court to allow President Biden to nominate a successor before Republicans take control of Washington. However, any potential changes to the composition of the Supreme Court are unlikely in the near future, even as lawmakers reconvene for a lame-duck session to wrap up their business before Trump begins his second term and the GOP assumes majority control of the Senate.
Sotomayor has not publicly addressed the rumors surrounding her retirement, and she has not responded to requests for comment on her future plans. She continues to actively participate in oral arguments and has gained a reputation for delivering sharp dissents in contentious cases. At 70 years old, she is not the oldest member of the Supreme Court, with Justices Clarence Thomas and Samuel Alito both being older than her. Sotomayor recently became the senior-most member of the liberal wing of the court after the retirement of Justice Stephen Breyer in 2022.
As the first Hispanic justice on the Supreme Court, Sotomayor is a decade younger than Justice Ruth Bader Ginsburg was when she faced pressure to retire in 2013 and 2014. Despite battling early-stage colon cancer and pancreatic cancer, Ginsburg refused to step down to allow President Obama to appoint her successor while Democrats held control of the Senate. She remained on the court until her passing in September 2020, after which Trump nominated Justice Amy Coney Barrett to fill her seat, expanding the conservative majority to 6-3.
With Trump’s second term on the horizon and Democrats losing control of the Senate in January, progressives are concerned about a repeat of the situation with Ginsburg’s seat. Molly Coleman, executive director of the People’s Parity Project, a progressive judicial group, expressed uncertainty about when a nominee who aligns with Sotomayor’s values will have the opportunity to be appointed. The current Senate makeup, with Democrats holding a narrow majority, presents challenges for confirming a new justice.
Senator Joe Manchin of West Virginia, a key swing vote, has indicated that he would not support nominees without bipartisan backing. While he initially expressed reluctance to back nominees without Republican support, he later voted to advance the nomination of a federal appeals court candidate. However, time constraints make it unlikely for a successor to be nominated and confirmed before the new Congress is seated in early January.
Erwin Chemerinsky, dean of the University of California Berkeley Law School, believes that Sotomayor’s retirement at this point would only give Trump the opportunity to fill her vacancy. He noted that the circumstances surrounding Ginsburg’s potential retirement in 2014 were different, as Democrats controlled the Senate at that time but lost it in the midterm elections later that year.
Progressive groups that previously called for discussions about Sotomayor’s future on the court are now recognizing that it is too late to push for her retirement. Coleman emphasized that waiting too long to address the issue could have dire consequences. Instead, these groups are focusing on confirming Mr. Biden’s remaining nominees to federal courts, as there are numerous vacancies that need to be filled.
While Trump made significant strides in judicial appointments during his first term, Biden is nearing the same number of appointments during his presidency. Liberal advocacy groups are urging the Senate to prioritize confirming Biden’s nominees to ensure that the federal judiciary is adequately staffed. The impending change in Senate control and the limited time before the new Congress is sworn in make it unlikely for Sotomayor to retire and be replaced before the GOP takes over.
