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.
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.