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What's behind the calls for Supreme Court Justice Sotomayor to step down?

MICHEL MARTIN, HOST:

Some commentators are calling for Supreme Court Justice Sonia Sotomayor to step down. They say they're concerned about her health. Sotomayor is 69 years old and speaks openly about living with diabetes, but the justice hasn't given any indication she's looking to retire. We called Kate Shaw to hear more about what else might be behind this increasingly open discussion. She's a constitutional law scholar at the University of Pennsylvania and co-host of the "Strict Scrutiny" podcast.

Good morning, Professor Shaw.

KATE SHAW: Good morning, Michel. Thanks for having me.

MARTIN: Thanks for coming. So how did this discussion about Sotomayor's health or this gentle prodding to retire get started? And why now?

SHAW: Well, I think it was kicked into gear by an article written by Mehdi Hasan, basically making the case that Sotomayor should retire and retire now, despite her kind of singular role on and value on the court. And I think the reason he made the case - and the reason we're having the conversation right now - is pretty simple, right? Ruth Bader Ginsburg and her decision not to retire at several critical points during the Obama administration, when there was, of course, a Democratic president and at points a Democratically controlled Senate.

In 2013, President Obama reportedly personally tried to nudge Justice Ginsburg to retire. And despite the fact that she was 80 and had twice had cancer, she didn't do that. And that meant that in 2020, when she died, President Donald Trump named her replacement, Amy Coney Barrett, with seismic consequences for the court and the country, right? Less than two years later, Roe was overruled. So, you know, Democrats, I think, see that there's a Democratic president, a narrowly Democratically controlled Senate, and they don't want to see a justice's delay in retirement turning a 6-3 conservative Supreme Court into a 7-2 conservative Supreme Court.

MARTIN: So, look, I take your point that there is - among progressives, at least, there's some anger, at least reflection, about the fact that Ruth Bader Ginsburg could have stepped down when the Democrats, you know, had the White House and Senate, and she didn't, which opened the door to the supermajority that we - that conservatives/Republicans have now. But that supermajority already exists. So unless something dramatic and unexpected happens, what difference would it really make for Sotomayor to retire, even if the Democrats were able to get a replacement confirmed in this time frame?

SHAW: Well, I think the argument is that locking in the 6-3 - it's still a very conservative court, but it's a very conservative court where occasionally the three Democratic appointees can peel off two more votes for things like, say, saving a lot of the Voting Rights Act, which was a case - an important case - that recently was decided. So that looks a lot harder in a 7-2 court. So I don't think the idea is that a replacement for Justice Sotomayor would dramatically change the dynamics. But not giving President Biden the chance to replace her and risking a Republican replacement, then a 7-2 court - I think that the scenario I just described, with the occasional liberal victory, I think, looks almost impossible to imagine.

MARTIN: Do you think these kinds of public conversations have any influence on the justices?

SHAW: I don't think they're totally impervious to these public conversations. So, you know, she may be paying some attention, but I do have to say, you know, a couple things. I do think that there are important differences between the Ginsburg scenario and where we are right now with Justice Sotomayor. Justice Sotomayor is 69. She does live openly with diabetes, but she has not had cancer. And she's been, you know, living with diabetes since childhood. So I think that's an important difference.

And I also think the fact that it is April of an election year means it is difficult actually to see - the Senate typically moves at a glacial pace on nominations, although there are exceptions historically, certainly. But I'm not sure there would even be time in April to, you know, confidently ensure the confirmation of a successor before the election. And, of course, if she announced retirement now, that could mean no replacement now, especially with Joe Manchin, a Democratic senator, having basically pledged not to vote for any Biden nominees who don't already have Republican support. So it would be a very risky move right now.

MARTIN: That is Kate Shaw. She's a constitutional law scholar at the University of Pennsylvania. Professor Shaw, thanks so much for these insights. We appreciate it.

SHAW: Thank you for having me.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

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Devan Schwartz
Devan Schwartz is an editor for NPR's Morning Edition. He is an experienced audio professional who, in addition to his work with NPR, has worked with such organizations as BBC, Slate, the New York Times, and various public radio stations.

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