The Democrats' biggest problem with age in 2024 is not Joe Biden

Sonia Sotomayor Elena Kagan
Alex Wong/Getty Images; Alex Wong/Getty Images
  • Just 3 out of the 9 Supreme Court Justices are liberals.

  • Sonia Sotomayor and Elena Kagan are in excellent health, but there's always risks as people age.

  • Unless Democrats are willing to risk a 7-2 GOP-held Supreme Court, it might be time to consider retirement.

Many Democrats are worried about Joe Biden's age as he heads into the next election. This is, to some extent, a valid concern: there's lots of reasons to be concerned about the rising age of the American government, and the rigors of the presidency are well-known. However, Joe Biden should be far from the Democrats' biggest worry when it comes to age.

As it stands, GOP-appointed justices control six out of nine seats on the Supreme Court. Earlier in his term, President Biden appointed then-51 year old Associate Justice Ketanji Brown Jackson to fill the seat previously held by retiring Justice Stephen Breyer, who was then 83. The other liberal justices, Elena Kagan (63) and Sonia Sotomayor (68) were appointed by President Barack Obama.

Already, this minority is being felt. The conservative wing of the court can pursue judgments sufficiently far to the right that they can lose one of their numbers and still pass 5-4. This was felt most acutely when the five most conservative justices — three of whom were appointed by President Donald Trump: one because the GOP-held Senate refused to consider an Obama appointee, and another because Justice Ruth Bader Ginsberg died — overturned Roe v. Wade.

An unexpected vacancy caused by the death or sudden retirement of a liberal justice under a Republican president or a GOP-controlled Senate would be catastrophic for Democrats. Already, a 6-3 court means that for the foreseeable future liberal policies will have a difficult time in the American judicial system.

A 7-2 court would make that disadvantage a generational one. Some current GOP justices have indicated that things like interracial marriage or same-sex marriage are safe despite the end of the Roe v. Wade precedent; perhaps a new colleague might not agree.

What are the chances of a 7-2 GOP Supreme Court?

We can approximate the general probabilities of this risk using actuarial data. It's far from perfect, given that these are wealthy lawyers with excellent health care and not exactly "average." But it's an effective ballpark estimate.

Among a group of women aged 69, 63 and 52 years old, we'd expect that there's an 18% chance that someone will die within the next five and a half years, which would take us to the end of the next president's term in January 2029. Subtracting the 4% chance of a death within the next 1.5 years, through the end of this Biden term, that brings us to a 14% chance that at least one of those three hypothetical people dies during the time the next U.S. president will be serving.

Is that especially high? No, absolutely not. It's well below the 40% chance their GOP counterparts have. But the question isn't is it likely, it's, what is the acceptable level of risk for liberals of most likely losing the court for the rest of their lives?

A 14% chance is low but not rare. It's very nearly the odds of rolling a one on a six-sided die. It's the likelihood a day in Phoenix, Arizona is a bit cloudy. A 14% chance of that happening is five times the chance of rolling snake eyes in a game of craps, an event which happens all the time. Any Dungeons & Dragons player would balk at a roll where there's a three-in-twenty chance of a TPK. A 14% chance is very, very possible.

How can the Democrats lower that chance?

A 7-2 Supreme Court split would mean anywhere from years to decades before the liberal side is likely even able to get back to four justices, and perhaps even longer. It would be tremendously bad luck, but then again, anyone who thinks that Democrats have had good luck at the Supreme Court is delusional.

In light of that, what should the Democrats do to minimize the risk of that outcome?

The president and his allies should pressure the older justices to step aside, and rank and file Democrats must forgo the kind of parasocial "Notorious RBG" campaigning many are so fond of to justify aging justices remaining on the court.

Biden's got a Democratic Senate right now. Who knows when Democrats will again hold both the presidency and the senate: the 2024 Senate map looks rough for Democrats, and the presidential election could be close. We could be talking anywhere from two to six or even eight or ten years here. If it all sounds rather familiar, I wonder why.

That said, there are ways to reduce the 14% chance. If instead of a 68-year-old woman, there was, say, a 50-year-old woman serving on the court, the risk drops six points to 8%. If both a 68-year-old woman and a 63-year-old woman were replaced with 50-year-old woman, it drops to about 5%.

I'm sure there are plenty of arguments against encouraging Justice Sonia Sotomayor or Justice Elena Kagan to retire. They can welcome and teach the new liberal justice. The time to retire is only when they can't do the job full steam. It's a question for their own good judgment alone. Their questions are aggressive and insightful, and their written opinions are more vigorous than ever. They don't skip a beat. They're still in tip-top physical condition. Perhaps they dream to remain on the court as long as Justice John Paul Stevens. The entire thing reeks of sexism. Perhaps they wonder if Sandra Day O'Connor regrets stepping down when she did. They were OK this last term, and they expect to be OK next term. It's the best job in the world for a lawyer, so why quit? Who could the president nominate that that you would rather see on the court than them?

The Democrats are on defense at the court. Playing defense means playing conservatively and minimizing risks. Many, many justices have served well beyond the age of 63, and many beyond the age of 68. The question is not if they're fit to serve, as they obviously are. The question is not if 68 is too old to serve, because it's obviously not. The question is rather, what is the maximum level of acceptable risk of a 7-2 GOP-held Supreme Court? Is it 14%? Is it 8%? Is it, perhaps, 5%?


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