Stephen L. Carter

The left’s absurd calls for Justice Sonia Sotomayor to step down so that President Joe Biden can name a younger replacement should be roundly condemned. To be sure, such pressure is an American tradition in the never-ending battle to “control” the Supreme Court. But the tactic is one that the justices themselves have a happy tradition of resisting.

A couple of disclosures: I attended law school with Sotomayor and I have some first-hand knowledge of how justices feel about these pressure campaigns. I was clerking for Justice Thurgood Marshall in 1980, when liberal activists made embarrassing efforts to persuade him to step down so that Jimmy Carter could nominate a replacement. Both before and after he lost the election to Ronald Reagan, the Carter administration sent emissaries to Marshall’s chambers to plead with him to retire. On election night, one television network reported as a fact his intention to comply. The report was nonsense. I can say with confidence that he never considered it.

There have, of course, been many such moments. More recently, Barack Obama tried unsuccessfully to persuade Ruth Bader Ginsburg to step aside so that he might appoint someone younger. And back in the 1960s, Lyndon Johnson successfully recruited Justice Arthur Goldberg to be ambassador to the United Nations, clearing the way to a high-court seat for LBJ’s crony, Abe Fortas. (Goldberg later expressed regret for giving in.)

But such outside political pressure rarely leads a reluctant justice to step down. More often, it’s been the conviction of court colleagues that the justice is no longer up to the job.

In 1868, for example, as Justice Robert C. Grier’s cognitive powers began to fade, colleagues took notice. One worried justice wrote in a letter to an acquaintance that a recent Grier opinion showed that the 73-year-old court veteran “is getting a little muddy and may not have conveyed the idea clearly.” In 1869, Chief Justice Samuel Chase visited Grier to persuade him to step down, which he did.

A more famous case involves Chief Justice Charles Evans Hughes, who in 1932 visited Justice Oliver Wendell Holmes Jr., to inform the visibly failing legal giant that the moment for resignation had come. Holmes took the hint and quit.

Hughes had succeeded William Howard Taft, who himself had persuaded an ill and feeble Justice Joseph McKenna to resign. But Taft, if the histories have the story right, would later refuse to step down even as he lay dying — until Herbert Hoover promised that Hughes would be his replacement. Taft resigned. He died a month later.

In the 1970s, both Justices Hugo Black and William O. Douglas struggled to hang on when they were no longer up to the rigors of the job. In Douglas’ case, the other justices even postponed some cases to await the vote of his successor. (Justice Byron White was evidently alone in his fierce opposition to this mistreatment of a colleague.) Both Black and Douglas were eventually persuaded to step down.

But notice what these examples have in common: In the opinion of those in the best position to know, the justice under scrutiny could no longer do the job. That’s worlds different from the challenge to Sotomayor, whose abilities nobody questions. What we have instead is the clamor of activists whose argument boils down to “Our side wants the seat” — the same claim made in the cases of Ginsburg and Marshall.

True, the scholarship suggests that many justices do indeed try to time their departures to allow replacements to be chosen by a president of the same party as the president who selected them. But even if practice is common, it shouldn’t be the norm. Justices don’t “own” their seats any more than activists do, and have no business trying to bequeath them.

Certainly, Supreme Court justices should step down if they are ready to retire. One thinks here of justices David Souter, Stephen Breyer, and the late Sandra Day O’Connor. But these justices made personal and family choices to depart, unrelated to any campaign of political pressure.

Want justices to retire earlier? Try devising incentives that make retirement more attractive. Scholars have proposed such enticements as doubling their pensions — a change that might make a difference. A 2019 article in the Journal of American History argues that a sharp 1932 reduction in pensions paid to retired federal jurists led aging Supreme Court justices to hang on longer than they’d planned, thus sparking, albeit indirectly, Franklin Roosevelt’s ugly court-packing plan. (Another bad idea that refuses to die.)

But short of finding ways to make stepping down more attractive, activists of whatever stripe should leave the justices in peace to either serve out their lifetime appointments or step down at moments of their own choosing.

Those imploring Sotomayor to quit are acting out of panic. That’s never a guide to wise policy.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”