Stephen Breyer retired. Why not Kagan and Sotomayor?


Last week, Politico leaked a shocking (but not surprising) draft outlining the Supreme Court’s plan to overturn Roe v. Wade, the 1973 decision that made abortion a constitutionally protected right.
The overturning of Roe would be a devastating blow to women’s rights, and underscores the crisis America is facing. We are seeing a rapid backslide of democracy, the steady stripping away of rights and an increasingly besieged working and middle class, aided and abetted by the election of Donald Trump and the full-throated embrace of authoritarianism by the modern Republican Party.
We are living in desperate times, and a resurgent far right can only be defeated by an equally powerful liberal movement. All stops must be pulled out to protect democracy and prevent the creep of fascism.
Against the backdrop of these developments, liberal Supreme Court Justice Stephen Breyer recently retired, allowing President Biden to nominate the first black woman, the highly qualified Judge Ketanji Brown Jackson, to the court, and potentially lock in a liberal spot on the bench for another 30 years. It logically follows, then: If we must do everything we can, why not ask fellow liberal Justices Elena Kagan and Sonia Sotomayor to retire as well?
The notion is not radical: Both women have enjoyed over a decade of service on the bench. They can retire with dignity, and can be reappointed to other judicial positions. And while Kagan and Sotomayor are relatively young justices, they are, respectively, the fifth- and third-oldest members of the court.

Appointing younger justices would ensure that those seats remain liberal, and judges a decade younger could weather another Republican president. The appointment of two new justices could also serve as an opportunity to nominate those with other backgrounds, such as the first Asian-American or openly gay justice, to the bench.
Under normal circumstances, I would not make such a suggestion. But the court’s liberal justices are caught in the crosshairs of circumstance, and must decide what matters more: their careers or democracy’s struggle.
If Biden intends to push any more Supreme Court justices through, his window of opportunity is quickly closing. The midterm elections are coming up, Republicans are poised to retake the Senate, and at that point any judicial aspirations for the Biden administration would be over. Let’s not forget how Republicans stole a Supreme Court pick and more than 100 other judgeships from President Barack Obama. I don’t expect them to be any kinder to Biden.
Still on the fence? Ask yourself, what would a Republican do? Read it here, quote me later: If a Republican wins the presidency in 2024, and if the Senate goes Republican, hard-right Justices Clarence Thomas and Samuel Alito will retire no later than mid-2026, allowing two fresh, 40-something conservative crusaders to take their place.
This is why Republicans win — because Democrats are timid, while Republicans actually care about power. They will use any Machiavellian trick in the book to get their agenda passed. That’s why Republican state houses get to erase transgender individuals and rewrite history, while Biden has to sit and watch the courts undo his every move.
Why Democrats won’t fight as hard for Black and brown, LGBT, Indigenous and poor Americans as hard as Republicans fight for white racists is a question for the philosophers.
While another two liberal justices wouldn’t hurt, the Biden administration must continue filling as many judicial vacancies on lower courts as possible. President Donald Trump left an indelible mark on the American judicial system, making more than 230 judicial appointments during his tenure. If Biden and Democrats at large want to bring the federal judiciary back to some semblance of normalcy, they must continue to confirm judges that will protect minority and voting rights post haste.
There is a prescient quote that captures the zeitgeist we find ourselves in: “In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing and the worst thing you can do is nothing.” The words are commonly attributed to Theodore Roosevelt.
This is Biden’s moment of decision. This is his one opportunity to yank the judiciary back to the middle and shape the Supreme Court in his favor, protecting our rights in the process. Whether he will seize this crucial moment in history and beat back the rising tide of authoritarianism and bigotry, or stand back as reactionary forces take over the country, remains to be seen.

Matthew Adarichev is a public policy major at Hofstra University, a political activist and an aspiring journalist whose work has appeared in the Hofstra Chronicle and the Anton Media Group.