Earlier this year, the retirement of then Justice Stephen Breyer was leaked before he could formally make the announcement himself. For many months before that, liberals and far-left groups had been hounding him to do so. Liberals aren't done yet, though, far from it. It's apparently time for Justices Sonia Sotomayor and Elena Kagan to retire, according to Vox's Ian Millhiser, who is often ranting and raving about the U.S. Supreme Court.
It's not just the Court that Millhiser is so hellbent against, but the Senate as well. "The US Senate is a fundamentally broken institution. Democratic judges need to account for that in their retirement decisions," he claims in his subheadline.
There had been enough anger about how the late Justice Ruth Bader Ginsburg had not retired when liberals thought she should have. Thus it wasn't President Barack Obama who nominated her replacement, but rather President Donald Trump, who replaced her with now Justice Amy Coney Barrett.
Sure enough, Millhiser begins by lamenting "We have now lived with the consequences of Ruth Bader Ginsburg’s late-life arrogance for more than two years."
While Millhiser acknowledges differences between the two sitting justices and Ginsburg, that's not good enough:
Both justices are much younger than Ginsburg was in 2014. There are no reports that either is in ill health (although Sotomayor has diabetes, she’s managed that condition nearly her entire life). Realistically, both justices could probably look forward to a decade or more of judicial service if they desire it. But even a mighty Supreme Court justice cannot overcome the merciless math facing Democrats in a malapportioned Senate that effectively gives extra representation to Republicans in small states.
Millhiser acknowledges that the Senate map isn't too good for Democrats in 2024, and indeed it is not. That raises the possibility of a Court even more so controlled by Republican-nominees, evidently Millhiser's worst nightmare. As he puts it, Sotomayor and Kagan, by not retiring, "could doom the entire country to live under a 7–2 or even an 8–1 Court controlled by an increasingly radicalized Republican Party’s appointees."
Later in his piece, Millhiser engages in particularly deep fear-mongering by ginning up the likelihood that the Court will overturn the 2015 case of Obergefell v. Hodges, which legalized same-sex marriage nationwide. Despite how this piece was published after the Respect for Marriage Act was signed into law earlier this month, Millhiser makes no mention of how same-sex has also been codified into federal law. It wouldn't fit his narrative.
It's other rights that Millhiser warns would be at stake, too:
Realistically, in other words, there are almost certainly at least two votes — and potentially as many as four votes — on the current Court to overrule Obergefell. That means that the constitutional right to marry whoever you choose could be in danger if Republicans gain just one more seat on the Court.
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In a world with seven or eight Republican Supreme Court justices, in other words, the Court will likely intrude into more and more areas of American life where it has no expertise and no lawful mandate to do so. It will dismantle rights that millions of Americans depend on. And it is likely to manipulate the electoral system to keep the Court’s ideological allies in elected office.
While Millhiser does acknowledge that there is a "price of early retirements," it doesn't seem to be where his heart lies. A bulk of the section involves throwing Justice Clarence Thomas under the bus, as he's done before.
"The good news, for Obama’s two appointees to the Supreme Court, is that they do not need to decide whether to retire today," Millhiser goes on to write. That "good news" isn't the lasting impression that Millhiser wishes to leave readers with, though.
"So Sotomayor and Kagan should certainly keep a close eye on the polls in 2024, and may be able to justify remaining on the Court if those polls predict a dominant electoral year for Democrats," he writes in closing. "But if they remain for too long, the consequences for the law — and for the nation — could be cataclysmic."
Stunningly, neither Breyer nor the treatment he endured is not mentioned once in Millhiser's piece. He had been the oldest justice on the Court, and was 83-years-old when news of his retirement came out, having served on the bench since 1994. President Joe Biden was thus able to nominate Breyer's successor, the now Justice Ketanji Brown Jackson, with Biden fulfilling a campaign promise to nominate a justice based on her race and sex.
As mentioned, Millhiser is often ranting and raving about the Court. The beginning of the piece even brags as much, reading that he "is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court."
Not only has Millhiser gone after Justice Thomas, he also cheered on the leak of the Dobbs v. Jackson decision and the leaker over Twitter, and even revealed that he had pre-written an obituary for Justice Samuel Alito, though such tweets were later deleted.
"Sotomayor" and "Kagan" were trending over Twitter on Wednesday in reaction to Millhiser's piece.
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