Jurisprudence

Let’s Talk About Whether RBG Should Have Retired

The decision looks a lot different in hindsight.

Ruth Bader Ginsburg sits in a chair and puts her hand to her head.
Supreme Court Justice Ruth Bader Ginsburg participates in a discussion at the Georgetown University Law Center on Feb. 10 in D.C. Sarah Silbiger/Getty Images

When Supreme Court Justice Ruth Bader Ginsburg died on Friday, she left behind a remarkable legacy of jurisprudence and advocacy, particularly for women. But her death also raised a slew of urgent political questions about the future of progressivism in the court and the country—questions that might not be an issue had she retired during the administration of Barack Obama, as some urged. In a special episode of The Gist, New York Times staff writer and Slate Political Gabfest co-host Emily Bazelon joined Mike Pesca to discuss the justice’s legacy and whether she made the right choice in refusing to give up her seat. A portion of the discussion is transcribed below. It has been edited and condensed for length and clarity.

Mike Pesca: When it was the sunset of Obama’s term, there was some talk that maybe Ginsburg should step down. She was an octogenarian, though still very alert and feisty and full of life. And people were reluctant to say to do so, because how dare you take away the agency from such an important and vital figure? But that was one discussion when it very much looked like she would survive until another Democratic president. Now that she hasn’t, should we reconsider that question?

Emily Bazelon: Yes. If you think about Justice Ginsburg’s own life work and what she cared about, in particular gender equality, this was what animated her from the time she was in law school and maybe earlier. She wanted women to have the same opportunities as men. She wanted men to have an expanded scope of possibilities in front of them, too. She wanted the kind of strictures of traditional gender roles to be loosened in America.

So when you think about all of that, and also that she was a huge champion for voting rights, for the Voting Rights Act, for the notion that making sure that people of color have equal political power and chance to vote in this country—that was a huge motivating force for her in the Shelby County decision in 2013. All of that is at risk now. So in hindsight, I think it’s clear that it was a mistake that she didn’t leave the court earlier.

I wrote a piece years ago making the argument that everyone yelling at her to get off the court was not going to work. She was an indomitable spirit, right? An incredibly strong, determined woman. And that’s how she got to where she was. It also meant, I think, that she made this real mistake of judgment in refusing to leave. And I think you’re right that she bet on Hillary Clinton winning the election.

Of course that didn’t happen. And so there’s always going to be this kind of unintended aspect of her legacy that’s just going to depend what happens next. In terms of whether the gains that she cared so much about, whether we’re going to get to keep them or not.

Yeah, you wrote that piece in December 2013. Here’s the last graph: “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.”

I want to end on a more humane note. Do you think her greatest legacy is in the decisions she wrote, what she represented, who she was to other female lawyers and justices? Where will we and how will we remember her?

Her greatest legacy is just the tremendous strides that women have made toward equality since she was a little girl growing up in Brooklyn. We just live in a different world where everything isn’t perfect, but women have so many more opportunities. We believe in ourselves so much more, I think, collectively than we did then. And that’s what she wanted for us.

Her legacy is her granddaughters. It’s all the people who dress up as her at Halloween. It’s the way she became a feminist icon because she cared so much about that kind of dream and opening those doors for people. One of the things she loved to say about the Supreme Court when Justice [Sonia] Sotomayor and Justice [Elena] Kagan were nominated—people said: “Aren’t you so glad that there’s going to be another woman on the court? First you got to serve with Justice [Sandra Day] O’Connor, but she’s gone, and now there’ll be two or three.”

And she said: “Sure, but I want there to be six. I want there to be seven.” She didn’t see any ceiling there. It wasn’t to her such a victory to have two or three people. She thought that women should be represented on the court in majority, just like men had been for so long. That was her sense of where she wanted the world to go. And I think that for so many women, she was an inspiration because she just had such a deep-seated conviction that we could do all those things, and that it was fair to ask.

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