Don't Tell Ruth Ginsburg to Retire

This Supreme Court justice will leave the bench when she's ready, regardless of what others think. 
Associated Press

If Justice Ruth Bader Ginsburg had followed advice from male law professors like me, she would probably not be where she is today.

Her entire career has involved defying expectations and forcing her way into places where she did not “belong”—Harvard Law School, when it was a frankly hostile male enclave; the professoriate, when it also scorned female scholars; the docket of the Supreme Court, at a time when the courts did not recognize sex discrimination as a problem.

Now that she is on the Court, she’s being told she doesn’t belong there any more. I doubt she’s paying attention.

These reflections are sparked by a recent column in the Los Angeles Times by Erwin Chemerinsky, Dean of the University of California at Irvine School of Law. Chemerinsky is a giant—the author of popular textbooks and treatises, he has also argued five cases in front of the high court. He speaks from a progressive viewpoint, and he suggests that Ginsburg retire at the end of this term. Delaying her departure even until 2015, he argues, risks allowing a Republican president to fill her seat. That would tip the Court’s dynamics in a radically conservative direction, imperiling the right to choose abortion as well as settled law on same-sex marriage, the Affordable Care Act, and the environment.

I don’t know Justice Ginsburg. Like anyone who covers the Court, however, I am fascinated by this woman warrior with the body of a sparrow and the heart of a lion. Now 81 (Chemerinsky’s column ran the day after her birthday), she has survived both colon and pancreatic cancer (last month marked the fifth year after her most recent cancer surgery). Her voice at oral argument is sometimes indistinct. At other times she appears to doze.

But woe betide the advocate who believes that she is not listening, or who underestimates her knowledge of the record! Her questions are aggressive and insightful, and her written opinions are more vigorous than ever.

Here, based on no inside information whatsoever, is my guess about the mind of Justice Ginsburg in the final stage of her career.

First, she loves her work on the Court. She rarely misses a day on the bench. Once she sat through argument with a broken rib; when her beloved husband of 56 years, Martin Ginsburg, died, she was on the bench, announcing an opinion, 24 hours later.

And her work has gotten more interesting recently. Since the retirement of Justice John Paul Stevens in 2010, she has been the senior justice on the liberal side of the Court. This is an important job—when the Court’s conservatives vote together as a five-member bloc, the senior liberal justice assigns the task of preparing the liberal dissent. The purpose of such a dissent is to discredit the majority’s reasoning and offer future courts grounds to distinguish or overrule the case. Ginsburg often assigns that duty to herself; her major dissents are masterpieces of the genre.

If she were to retire at the end of this term, that leadership role would, for the next few years, fall to Justice Stephen Breyer, 75. (Chemerinsky also suggests that Breyer “consider” stepping down.) Though Ginsburg and Breyer are both “liberals” on this Court’s spectrum, they are a study in contrasts. Where Ginsburg fights, Breyer dithers; where her ideas are clear, his are mercurial; where she draws lines, he wanders across them; where her dissents are straightforward, his tend to be—well—incomprehensible. In the showdown over the Affordable Care Act, Breyer, along with Justice Elena Kagan, crossed the aisle to support Chief Justice John Roberts in limiting Congress’s Spending Power; Ginsburg’s s opinion dripped contempt for this newly minted limit on a crucial federal power. I wouldn’t be surprised if she thought that her departure would leave the liberal wing without real leadership.

Beyond loving her work, of course, it is the melancholy fact that she has little else in her life. By all accounts, “Marty” Ginsburg was a Sun King figure, a gourmet cook and entrancing host, beloved by a wide circle of friends, devoted to his brilliant wife, bubbling with joy and humor. Ruth Ginsburg’s air is often dour, but she has a joyous side. (See the brilliant profile by The Washington Post’s Robert Barnes from last September.) Marty expressed it.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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