This week brought yet another tussle in the altogether imaginary public battle over Ruth Bader Ginsburg’s future at the Supreme Court, this time in the form of a column in the Los Angeles Times by Erwin Chemerinsky, dean of the UC–Irvine law school, and someone whose opinions I always take extremely seriously. Chemerinsky argues, as many have argued before him, that Ginsburg—who turned 81 on Saturday, has survived one type of cancer and one cancer scare, and has broken her ribs twice in the past two years—should retire this summer in order to ensure that “a Democratic president will be able to choose a successor who shares her views and values.” Why this summer? Because “If Ginsburg waits until 2016 to announce her retirement, there is a real chance that Republicans would delay the confirmation process to block an outgoing president from being able to fill a vacancy on the Supreme Court.”
Chemerinsky fully voices the fears of all of us who have watched the court slowly erode abortion, employee, environmental, and voting rights in the past decade. For instance: “There are, for example, four likely votes to overturn Roe v. Wade on the current court: Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. If a Republican president selects Ginsburg’s replacement, that justice easily could be the fifth vote needed to allow the government to prohibit all abortions.”
Now, Chemerinsky is not the first to try to nudge Ginsburg into contemplating retirement, and he surely won’t be the last. Randall Kennedy, of Harvard Law School, called on Ginsburg and Justice Stephen Breyer (who is 75) to retire in 2012, for many of the same reasons. Jonathan Bernstein at Salon made the case this time last year. As did Marc Tracy in December. Most of these columnists seem to assume that Ginsburg is either secretly dying or is determinedly unaware of the political world she inhabits.
Bracket for a moment the discussion about whether it’s in poor taste to advise Supreme Court justices that they are old and don’t know what’s happening. (“Knock, knock.” “Who's there?” “You’re super old!”) This shouldn’t really be a conversation about good taste. The fact is that making a political judgment about a justice in a public forum is never going to work. Emily Bazelon pointed this out in a piece last year, in which she noted that the more journalists and academics make political, pragmatic arguments in an effort to pressure a judge to think about the judiciary in political ways, the more likely it is to backfire. (Bazelon also noted that it feels the slightest bit sexist to call on Ginsburg to retire, invariably with a hearty parenthetical about her path-breaking contributions to gender rights law.)
But there’s another problem with these pleas for judges to behave rationally and politically: They seem to assume judges suffer from poor judgment. As Steven Mazie of the Economist puts it in a piece today, “Does anyone really think the justice has yet to think through her decision? Isn’t the doomsday scenario of a 6- or 7-justice conservative bloc screamingly obvious to her? Should any of us really counsel Justice Ginsburg on her major life decisions?” In an interview last year with Joan Biskupic, Ginsburg made it plain that she was well-aware of all the liberal criticism and that she believed O’Connor left the court too early and didn’t plan to make that mistake. In an interview with Robert Barnes she also made clear that she is monitoring her own health, her hearing, and her ability to recall case names. I have seen not a lick of evidence that Ginsburg is failing. Justice John Paul Stevens retired at 90, many believe it was too early, and by that metric, Ginsburg should have almost a decade to go before we start hectoring her. (Too late!)
So what is it that she isn’t taking into account? Do Ginsburg’s critics think she has forgotten her age, or her medical history, or the date of the upcoming election? Do they expect her to answer blatantly political questions from reporters about the need for Obama to appoint her successor in blatantly political ways? She answers in riddles not because she is clueless but because to do otherwise would be absurd, and undermine the judicial branch, and her own integrity.