Jurisprudence

Why Ruth Bader Ginsburg Didn’t Retire During Obama’s Presidency

It’s not just because no one anticipated Trump’s win.

President Barack Obama greets Supreme Court Justice Ruth Bader Ginsburg.
President Barack Obama greets Supreme Court Justice Ruth Bader Ginsburg before his State of the Union address before a joint session of Congress on Capitol Hill on Jan. 24, 2012, in Washington.
Saul Loeb-Pool/Getty Images

On Jan. 11, Dahlia Lithwick joined Mary Harris, host of Slate’s new daily podcast What’s Next, to discuss Ruth Bader Ginsburg’s health and why the justice didn’t step down during the Obama presidency.

A transcript of their discussion, which has been condensed and edited for clarity, is below.

Mary Harris: You cover the Supreme Court for Slate. And [last] week something really surprising happened. Can you talk about it a little bit?

Dahlia Lithwick: I can. With the huge caveat that I don’t have insider information. I can just tell you what I’m hearing, which is yes, it’s extraordinary. For the first time in over 25 years, Ruth Bader Ginsburg, who, by the way, has survived colon cancer and pancreatic cancer, [missed] oral arguments [last] week.

And she didn’t miss oral arguments after her husband died.

She was there. I was there. The next day, she was on the bench reading a dissent. So she does not kid around. And she didn’t miss when she was treated for other cancers, and so the world flipped out because she missed Monday and Tuesday and Wednesday arguments [last] week. So what I can tell you is what the surgeons are saying, which is she just had, on Dec. 25, she had half of her left lung removed. This was the result of, you remember, they found some malignant nodes. They found the nodes because she cracked ribs, and only because they were X-raying the ribs did they find the nodes. It’s a huge surgery.

Now, she’s home. She’s working from home. She’s listening to … she’s got the audio. She’s reading transcripts. She participating.

Yeah, what does working from home mean as a Supreme Court justice? Are her clerks there? What’s going on?

When then–Chief Justice Rehnquist was very, very sick with thyroid cancer, he just worked from his hospital bed, worked from home. So what she’s doing is drafting opinions and reading draft opinions that other people have written. And doing all the things that justices do. Maybe to help put it in perspective: They hear 12 cases a month for six days, so this is not a huge part of the job. It’s the public-facing part of the job. It’s the part where we get to see them, and I think we get this notion that this is the totality of what they do. But 95 percent of the job—it’s like an iceberg—is the stuff that they would never put in the TV show because it’s so boring. It’s just them reading and writing. And that’s—she’s perfectly capable of doing that from home.

Now, that said, I guess we should add she’s 85.

Yeah.

I think I read somewhere she’s the fourth-oldest Supreme Court justice.

It’s something like that. I mean, John Paul Stevens retired at 90.

But Kennedy retired at 82. It’s not a trivial thing, to be 85 and a three-time cancer survivor, and I think that we get very hagiographic about her workout tapes.

I mean, I guess she’s become this feminist icon. And I wonder if it just sort of prevents us from seeing the 85-year-old woman that she is in some ways. A friend of mine who’s a lawyer posted—and I thought this was thoughtful—that there’s this liberal debate of, well, should she have retired while Obama was president? And she was like, you know you’ve got to be careful with that. Because part of feminism is letting people do what they want, and we’ve let these guys work until they’re 90.

Well, that’s what she said. One of the things she says in response to that is like, Weird. Nobody was demanding that John Paul Stevens retire. Nobody was demanding that Stephen Breyer retire. So I think she does see this valence of sexism around it. There was this laser focus on why she wasn’t stepping down, and I think that offends her. For what it’s worth anecdotally, a lot of people have said that she watched Sandra Day O’Connor get forced off the court. That’s itself an amazing feminist story that doesn’t get told, right? Where Chief Justice Rehnquist is incredibly sick. And O’Connor’s husband is incredibly sick. So much so that she said, I’m going to have to next year, she said to the chief justice, I’m going to step down so that I can care for my husband.

So, stop and sit with the fact that male justices don’t retire to care for their ailing spouses. And then this is the kind of the weird feminist bit: Chief Justice William Rehnquist says to her, Actually, no, I’m going to retire next year, so you should go now. And he says to her, Because you can’t have two in the same summer. There’s just a core tradition that two confirmation hearings is too much of a jolt to the public system. So he says to her essentially: Don’t do it next year; I’m going to do it next year; you do it now. She, by the way, I should just add, is at the height of her powers. At this moment, she’s the most important woman in the country. She’s the 5–4 vote. The swing vote. She was Kennedy before Kennedy was Kennedy. So he says step down now.

She steps down. And he dies shortly after. So not only do we end up having two confirmation hearings—boom-boom in a row, we have John Roberts and Alito—but then she ends up having stepped down before she was ready. And the really tragic coda, if you’re counting sort of feminist indignities here, is that within a very, very short time, her husband is institutionalized. He doesn’t recognize her anymore.

I think Ginsburg has said she was forced off before she was ready. And she could have been on the court for five more years or seven more years or whatever. And we don’t know what the world would have looked like. And I think that story is playing in the back of Ginsburg’s head when she’s like, No man is going to tell me it’s my time, because I saw that happen to a person who really, I think, in many ways was her sister at the Supreme Court.

It’s a long, long, long story.

I like that story. I didn’t know that story.