If you are a liberal who cares about the Supreme Court, you may be feeling that Justice Ruth Bader Ginsburg just slipped coal into your Christmas stocking. (If you don’t have a stocking, me neither, but ’tis the season.) At an event in Virginia on Tuesday, answering a question from former Solicitor General Ted Olson about whether Supreme Court justices should retire when the party that appointed them controls the presidency and will get to replace them, Ginsburg said, “I think one should stay as long as she can do the job.” This builds on her remark to Adam Liptak of the New York Times in August, when she made it clear that she was not timing her departure based on Barack Obama’s remaining years in office. She said then, “There will be a president after this one, and I’m hopeful that that president will be a fine president.”
In the New Republic, Marc Tracy called that hopeful comment “bizarre,” in one of several recent baffled, angry liberal rants about why Ginsburg needs to go— Right Now. These pieces started appearing two years ago, with another New Republic essay, by Harvard law professor Randall Kennedy. They all walk the same path. Hail Ginsburg for her distinguished service. But she is old (at this point, 80). She had cancer a while back. If she cares about her legacy, she should want a Democratic president to appoint her successor. This isn’t “illicit politicization of the Court,” Kennedy argued. “It is simply a plea for realism.”
To their credit, Tracy and Kennedy extend their pleas for imminent retirement to Justice Stephen Breyer, the Supreme Court’s other Clinton appointee, who is 75 and has served almost as long as Ginsburg. Only Ginsburg, though, seems to face the retirement music wherever she goes, forcing her to repeat her not-yet determination. Yes, she’s older than Breyer, and yes, she did have early-stage colon cancer in 1999 and very early-stage pancreatic cancer in 2009. But she’s also a small, slender woman who speaks in low tones and looks like a bird. People tend to assume she is frail when in fact she is anything but. (The Notorious R.B.G. Tumblr exists to showcase her actual toughness.) All the “Ruth, haven’t you had enough?” talk starts to seem a wee sexist.
This isn’t about gender, you say—it’s about the toxic brew of law and politics that is our Supreme Court appointments process. Don’t Ginsburg and Breyer recognize that by staying on and courting the possibility that they will be replaced by Chris Christie or Marco Rubio rather than Hillary Clinton, they are rolling a giant pair of dice? As Jonathan Bernstein wrote in the Washington Post in November, “There’s absolutely no question about it; if they want to secure the principles they have fought for during their careers, the best thing both of these senior liberal justices can do is to retire right now.” This is an obvious and perfectly sensible way to think about the court. I’m a pragmatist, so I’m drawn to it too. To play it out: If Ginsburg and Breyer aren’t replaced by fellow liberal-moderates, Roe v. Wade could fall or wither away. Civil rights generally would surely shrink and corporate rights would grow. We would have more capital punishment and less campaign finance regulation, more government invasion of privacy and less gay marriage.
Well, that was an easy paragraph to write. There’s another, longer view, though, and it matters more than mine or anyone else’s I’ve quoted, because it must be closer to Ginsburg’s perspective (and perhaps Breyer’s as well). I got it from Yale Law School fellow and former New York Times Supreme Court correspondent Linda Greenhouse. I asked her about Ginsburg, and she wrote me this email:
I think from her perspective she is taking a long view of history, not a case by case one, or a term by term one. She has to believe that justice will win out in the end—or that, if it doesn't, her departure at one point or another couldn't be the major factor. I agree with her and I think people ought to give this issue a rest and concentrate on electing Democrats to the White House and the Senate. ... I think the issue is serving as kind of a displacement for the liberals’ general sense of powerlessness—they seem to feel that getting Ruth to resign would be something concrete they could accomplish when all else is failing.
Imagine the short-term worst, from a liberal court-watcher’s point of view: A conservative Republican wins the White House in 2016, and Ginsburg and Breyer announce their retirements the following year. The Republicans also control the Senate. They kill the filibuster for Supreme Court appointments and confirm nominees who see Justice Antonin Scalia as their hero. The court lurches to the right. See above for the dreaded results.
And then? Would We the People rise up and elect a Democratic president, who would then get to make his own slew of appointments? Would the left finally take the courts as seriously as the right has long known to? And if not, could we lay the blame on Ginsburg and Breyer—or would we all share in it?
Those questions, and the scenarios they’re drawn from, still make me nervous. But I think Greenhouse is right when she says this of Ginsburg: “I think she feels that it belittles and diminishes the court to have retirements so obviously timed for political reasons, and the more people yap at her, beginning with Randy Kennedy a few years ago, the more political and instrumental her retirement would seem.” Even if you think it’s delusional to see the Supreme Court as anything but political, scolding Ginsburg about staying on isn’t working. She has made it more than clear that she isn’t going to retire because columnists and law professors think she should. Tell a strong woman what to do too many times, and she’ll tell you (politely, if you’re lucky) to stuff it.
I don’t point this out because I think that Supreme Court justices should serve as long as they are able. To the contrary, the justices tend to serve for too long. When the framers of the Constitution gave federal judges life tenure, people lived far shorter lives than they do now. If I could, I’d amend the Constitution to phase in 18-year term limits. This way, succession would be orderly. Every president would have the chance to pick two justices. Of the current justices, Scalia would have left the court in 2004, Anthony Kennedy in 2006, Clarence Thomas in 2009, Ginsburg in 2011, and Breyer in 2012. Thought experiment: In that parallel universe, what kind of Supreme Court would we have now?
The justices could give us the gift of regular turnover themselves, by agreeing to adopt voluntary term limits. No Constitutional amendment necessary. But that would take unanimous collective action from a fractured group of nine on perhaps the most personal issue of all—their own work lives. It’s another dream that won’t come true. But at least it makes for better holiday conversation than liberal complaints about Ginsburg’s determination to stay put.