Dem
51
GOP
49
As we have pointed out several times, Senate Democrats face a brutal map in 2024. Term-limited Gov. Jim Justice, a coal billionaire and the richest man in West Virginia, is probably going to challenge Sen. Joe Manchin (D-WV). Given that West Virginia went for Donald Trump by 40 points in 2020, Justice might well win, although Manchin could avoid defeat by running for the open governor's job instead of running for senator in 2024. He might even enjoy watching all the Democrats who hate him beg him to run for reelection instead.
If Justice wins that seat, the Democrats would have to hold tough seats in Montana, Ohio, Wisconsin, and other states to have at least 50 seats in the Senate in 2025. If the Democrats lost West Virginia and just one of the others, they would be down to 49 Senate seats. This means that probably no more judges could be confirmed unless they were related by blood to Republican leader Sen. Mitch McConnell (R-KY), and maybe not even then. Since it might be many years before the Democrats controlled the White House and also the Senate again, some Democratic worrywarts are already openly hoping that Justices Sonia Sotomayor and/or Elena Kagan will retire while Joe Biden could still replace them with younger justices. For example, Ian Millhiser is spooked by the thought of a Supreme Court with seven or even eight right-wing Republicans. Replacing Sotomayor and Kagan with 45-year-olds would prevent that for decades.
The current oldest justice is Clarence Thomas at 74, but he probably has a living will specifying that he is to be kept technically alive on however many machines it takes until there is a Republican in the White House and a Republican Senate. Sotomayor is 68. Kagan is 62. Statistically, a 68-year-old woman can expect to hang on for another 18 years A 62-year-old woman should be good for another 23 years. But a 45-year-old woman is probably good for 45 more years. Given how contentious the Supreme Court has become, that sounds a lot better to some Democrats.
Will the justices retire? Historically, that would be unusual. Over the past 100 years, the average age of retiring justices was 75. Over the past 40 years, the average retirement age was north of 80. The one obvious counterexample was David Souter, who retired in 2009 at 70, although Souter made it clear that he hated living in D.C. and wanted to go back to New Hampshire, where he grew up.
Will Sotomayor or Kagan take the hint? After all, stuff happens. Even to people as famous and beloved (by some folks) as Ruth Bader Ginsburg. Sotomayor is well aware of the fact that she has diabetes. She also knows she will hit 70 on June 25, 2024, in the middle of the presidential campaign, allowing Biden to make very high profile nomination and get the nominee confirmed. Will she do it?
The most recent justices who retired did so when they could be replaced a president of the same party as the one who nominated them. Stephen Breyer even went public about that, although he took so long to exit that Democrats were down on their knees praying for him daily. It's not a secret that retirements are always strategic now, but a retirement by a justice as young as these two would really focus everyone's attention on how broken the Supreme Court is. It might even start a serious discussion about a constitutional amendment establishing fixed terms of 15 or 18 years, a mandatory retirement age of 65 or 70, or even a new procedure allowing every president to make one nomination per election won and having the size of the court vary instead of being fixed at nine. Having an even number of justices sometimes wouldn't be a disaster as an even split would just leave the appeals court decision in place (for its circuit). (V)