The calculation she is making there there is whether her chances of having a significant health event in the next four years are greater or lesser than the chance of Thomas or Alito doing so, because neither of them are likely to do a controlled retirement: the money is too good.
If Trump wins the 2024 election (and it's not the last one we ever have), Roberts will likely do a controlled retirement, but the president elected in 2028 will likely appoint the replacements for all three of Sotomayor, Thomas, and Alito, which gets you back to 5-4.
IE, Roberts' replacement, Gorsuch, Kavanaugh, and Barrett the 4, Kagan, Jackson, Sotomayor's replacement, Thomas's replacement, and Alito's replacement the 5. But if even one of Sotomayor, Thomas, or Alito die or do a controlled retirement 2024-2028, that's in question.
I don't *think* Thomas or Alito would take the retirement, but one of them might. I think Sotomayor is gambling that she'll be able to stay in office for the next four years and that she can move Barrett the way RBG moved Souter.
She might be wrong about being able to move Barrett or about her own ability to handle another four years, in which case you're looking at 7-2, but if she's wrong about her ability to handle another four years but not about her ability to move Barrett, that's still 6-3.
It's a tactical move that may backfire, absolutely. But I think she's making it deliberately and with full knowledge that she's making it, unlike RBG, who just held on out of ego.
I don't think you're wrong that Sotomayor is doing some work moving votes with her current spot on the court.
Though, I do disagree with you on the risk calculus. Whatever fractional Barrett votes she accrues are undone and more if the gamble goes bad. Alignment of POTUS+Senate is too rare to pass
Her retiring now locks in 6-3 for at least until one of Roberts, Alito, or Thomas dies (and possibly longer). Her not retiring is a chance of 7-2 gambled against a chance of 5-4 or even 6-3 in the other direction. I don't think 7-2 is that much worse than 6-3 to justify foreclosing the chance.
A non-rhetorical question because I have no idea: what is the on the record evidence (other than ACB’s jurisprudence occasionally surprising) that Sotomayor is making this an actual project?
That second article is particularly interesting, because it reveals small details like Sotomayor was the first to call Barrett after her confirmation and showed up on Barrett's first day with candy for her kids, etc. I tracked down a transcript of the full remarks at the time, not just the summary.
I can't find it now, of course, sigh. But a *lot* of the "civility" stuff that people objected to was really, really interesting to me, both as someone who has studied patterns of deradicalization *and* as someone raised Catholic. Because it hit *a lot* of my Catholic signifiers.
Sotomayor is very, very conscious of soft power, and her entire career *and* a lot of her personal life has turned on finding the small levers of how to apply it. I wouldn't necessarily think this of someone else. But her specifically? Yeah, I think that's what she's doing.
