Arguments about Ginsburg’s political judgment almost by necessity inflect upon her judgment as a whole, and yet nobody has advanced any argument for the proposition that Ginsburg’s judgment is failing. The suggestion that the woman who engineered the ACLU’s litigation strategy in the courts, who wrote the partial dissent in the health care cases, and again in last year’s voting rights case, and in Vance v. Ball and UT Southwestern Medical Center v. Nassar, doesn’t understand real-world politics is actually pretty bizarre. Of all the sitting justices, Ginsburg is probably the least likely to simply forget to retire because it slipped her mind. (One can, on the other hand, plausibly imagine Breyer simply forgetting to step down.)
Over at the Atlantic, professor Garrett Epps has just written in defense of Ginsburg. You should read the whole piece, but two important points he makes are worth repeating: Ginsburg plays a crucially important role in the Roberts Court as the senior justice on the liberal bloc, not just in terms of assigning opinions but in terms of writing them. If anything, Ginsburg has been stronger in recent years than ever and has been a crisper, more urgent voice for women’s rights, minority rights, affirmative action, and the dignity of those who often go unseen at the high court than ever before. She has gone from rarely reading her dissents from the bench to doing so with great frequency, calling out the majority for what she sees as grave injustices and proving that her voice is both fiery and indispensible. Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate. That analysis suffers from exactly the same realpolitik flaw Ginsburg’s critics ascribe to her: that counting to four, or five, is more important that the justice herself. Ginsburg, like Antonin Scalia, is writing those dissents for law students, for the case books, and for Congress. Not all justices are created equal in that regard.
Epps’ other point is that knowing when you’ve stayed at the court too long is a complex and deeply personal inquiry, and that many of the justices who overstayed their time were blind to their own illnesses and failings. Others left before they should have. But of all the justices now at the court, Ginsburg strikes me as the least isolated, the least self-involved, and the least likely to surround herself with sycophants telling her to stay on. Ginsburg is not a Justice who reads no newspapers, vacations alone, or hides out from the world. Her travel and speaking schedule is punishing. She is as deeply connected to the world around her as she has always been.
It strikes me as interesting that regular court-watchers tend to be affronted by suggestions that it’s time for Ginsburg to go, just as political scientists are astonished that it isn’t. Maybe Linda Greenhouse, Epps, Bazelon, and others are considered by the Ginsburg’s-got-to-go crowd as simply captive to the same “justices aren’t political” brainwashing as Ginsburg, but maybe they just see Ginsburg through a different lens. Look, it’s easy to say she weighs 100 pounds and looks like a tiny little chicken with a white lace ruffle, but she’s weighed 100 pounds and looked like a tiny little chicken for decades. Also, she can do more pushups than most of us that read footnotes for a living.
Reproductive rights advocate and writer Jessica Mason Pieklo suggests that it’s not the legacy of Roe we should be obsessing about anyhow, but rather why it is that Democrats can’t seat progressives no matter which party is in power. I agree. I’m not naive enough to suppose that a bird in the hand is always the answer, but the fact that President Obama can’t get a civil rights lawyer confirmed to a civil rights position in this political climate or seat a surgeon general who believes gun deaths are connected to public health tells me that the argument that he could easily confirm a Ginsburg 2.0 is naive as well. Ginsburg herself often says that the chances of another Ginsburg being confirmed to the court today are negligible. It’s perverse in the extreme to seek to bench Ginsburg the fighter, simply because Senate Democrats are unwilling or unable to fight for the next Ginsburg.
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