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.
Now, though she loves the opera and has many friends, she fills most nights by reading briefs and writing opinions. If she were to retire, that center would drop out of her life.
Finally, she may take a complex view of her “duty” to President Obama and the Democratic Party. Unlike many justices, she didn’t get where she is through party loyalty, but through rebellion. She may not love all Democratic presidents equally.
In August of last year, Ginsburg told The New York Times that “there will be a president after this one, and I'm hopeful that that president will be a fine president.” Ginsburg may think that president will be Hillary Rodham Clinton, and might yearn to offer America’s first female president—a redoubtable progressive and the wife of the man who put Ginsburg on the Court—the opportunity to replace her. If that is her thinking, only history will tell us how wise it was.
Persuading a justice to resign is tricky work. In 1869, the members of the Court as a whole pressured Justice Robert Grier, paralyzed and apparently demented, to leave the Court. More than a quarter-century later, Justice Stephen J. Field, by now intermittently demented himself, was reminded of his role in that episode. Field replied, “Yes! And a dirtier day’s work I never did in my life!” Field refused to resign for another year.
Justice Willis Van Devanter, leader of the anti-New Deal “Four Horsemen,” resigned only after FDR signed a bill providing increased pensions for retired justices. Lyndon Johnson used an illusory role in settling the Vietnam War as bait to lure Justice Arthur Goldberg off the bench. His real motive was to make a place for his crony, Abe Fortas. Fortas was later forced to resign because of his financial relationship with a financier facing federal indictment.
Before he became president, Representative Gerald Ford tried to impeach liberal Justice William O. Douglas; Douglas clung to his post despite a stroke, determined to deny Ford a nomination, to the point that his colleagues agreed that any case decided by Douglas’s single vote must be reargued after he finally left office. Justice Lewis F. Powell assigned his son, Richmond lawyer Lewis Powell III, the duty of advising when the time had come for his father to retire; when he resigned in 1987, the elder Powell quoted his son as saying, “Dad, it's a whole lot better to go out when some people may be sorry than it is to wait until when you decide to go ahead, people say, ‘Thank God we got rid of that old gent.’”
Despite terminal cancer, Chief Justice William H. Rehnquist planned in 2005 to leave only in 2006. Justice Sandra Day O’Connor confided her plan to retire that year as well, to care for her husband, who suffered from Alzheimer’s Disease. Rehnquist reportedly insisted that O’Connor retire in 2005, so that the Court would not have two vacancies at once. After O’Connor had announced her plans to leave, Rehnquist died. Shortly afterwards, John O’Connor had to enter full-time care, making O’Connor’s plans to care for him moot; he died in 2009. O’Connor, still active and outspoken, may regret her decision.
The lesson, if there is one, is that the timing of judicial resignation is a complex mix of ego, ideas of mortality, political fealty, and dynamics within the Court. Justices, I suspect, just don’t see the issue the way the rest of us do, as a straightforward matter of presidential elections and judicial votes.
And for that reason, I think publicly telling Ruth Ginsburg what to do would be bad manners and bad psychology.
I wish this brilliant woman 100 years of life, whenever and however she leaves the Court. I only know I will miss her when she is gone.