With only three liberal justices out of nine currently serving on the Supreme Court, Democrats face a significant challenge. The age of these liberal justices is a growing concern for Democrats, as it could potentially tip the court’s balance in favor of conservatives.
The Supreme Court is predominantly influenced by justices appointed by Republican presidents, with six of the nine seats held by GOP appointees.
Justices Sonia Sotomayor and Elena Kagan, while in excellent health, are not immune to the risks associated with aging. While many Democrats worry about President Joe Biden’s age, the focus is shifting to the age of the liberal justices.
A Conservative Court
The current minority of liberal justices faces the challenge of a conservative-leaning court. Even if one conservative justice is absent, the conservative wing can still pass decisions with a 5-4 majority.
Roe vs. Wade
This was evident in the overturning of Roe vs. Wade, where three of the most conservative justices, appointed by President Donald Trump, played a crucial role.
The prospect of an unexpected vacancy due to the retirement or death of a liberal justice during a Republican presidency or Senate control would be detrimental for Democrats.
The Risks at Play
A 6-3 court already poses challenges to liberal policies, but a 7-2 court would extend this disadvantage for generations.
Some conservative justices have indicated a willingness to revisit issues like interracial and same-sex marriage, which adds to the uncertainty.
We can use actuarial data to estimate the risk, though it may not be perfect. Among three hypothetical liberal justices aged 69, 63, and 52, there is a 14 percent chance that at least one may pass away during the next president’s term, ending in January 2029.
While this risk of death is not exceptionally high, it prompts the question of what level of risk Democrats find acceptable in potentially losing the Supreme Court for an extended period.
A Possible Solution
To lower this risk, Democrats could encourage older justices to retire and refrain from overly idealizing aging justices.
President Biden, with a Democratic Senate, has an opportunity to nominate younger justices who can serve for an extended period. Replacing aging justices with younger counterparts could reduce the risk significantly, down to 8 percent or even 5 percent, depending on the replacements.
Who Will Retire?
The decision of whether to retire ultimately lies with the justices themselves. Justices Sotomayor and Kagan seem to be in excellent physical condition. Yet, the political landscape and the need for long-term balance in the court are important factors to consider.
In response to the Democrat’s new fear of aging Justices, many view aging government officials and the risks they place on Americans as a more significant issue throughout the political system.
One social media user commented, “Age is neither the Democratic or Republican parties’ biggest problem – it is corruption and ignorance that are decaying the parties from within, thus outwardly destroying America.”
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