The Fiercest Liberal in Justice
Often when we think about justice what first comes to mind isn’t a specific environmental, educational, economic or social justice, it is the justice system. And highest of high courts in that justice system, least for the United States is the Supreme Court. How often do we think about their rulings when we think about justice? Typically we think of the system as a whole, but there are a group of individuals which are every day making the highest level of justice decisions and often we forget the individuality of these players in the midst of the overall fight for justice.
Recently the question came up about Supreme Court Justice Ruth Bader Ginsburg, should she stay, or should she go?
JUSTICE Ruth Bader Ginsburg, the Supreme Court’s fiercest liberal, turned 81 last week. She has survived two bouts of cancer, in 1999 and 2009, and didn’t miss a beat after breaking a pair of ribs in 2012. Though stooped and molasses-like on her feet, Justice Ginsburg shows no signs of intellectual decline, questioning lawyers with slicing precision during oral arguments. She also stays in physical shape: though she has given up water-skiing, the justice can still drop and give her trainer 20 “male” pushups.
But some of her strongest supporters say Justice Ginsburg’s 21st year on the bench should be her last. With Barack Obama on his way out in 2017, a Republican in the White House would have the opportunity to replace her with a conservative who could tip the balance on abortion rights, same-sex marriage, racial equality, gun control and many other critical issues.
Randall Kennedy, a law professor at Harvard, called on both Justice Ginsburg and Justice Stephen Breyer (now 76) to retire before the 2012 election, lest Mr Obama lose to Mitt Romney. Jonathan Bernstein repeated the entreaty a year ago in Salon. The latest plea comes from Erwin Chemerinsky, dean of the UC Irvine school of law, who insists that Justice Ginsburg give notice this summer, before the Senate risks falling into Republican hands (which, as we reported recently, is plausible):
If Ginsburg waits until 2016 to announce her retirement, there is a real chance thatRepublicans would delay the confirmation process to block an outgoing president from being able to fill a vacancy on the Supreme Court. In fact, the process for confirming nominees for judicial vacancies usually largely shuts down the summer before a presidential election.
“So long as the Democrats control the Senate,” Mr Chemerinsky reasons, “President Obama can have virtually anyone he wants confirmed for the Supreme Court.” If she cares about the rights of future generations of Americans, the argument goes, Justice Ginsburg will hang up her robe and let herself be replaced while Democrats control the White House and the Senate.
On one hand, the progressive chorus calling for Justice Ginsburg to retire is, as Mr Kennedy wrote, “simply a plea for realism.” No one who supports Roe v Wade would feel secure watching abortion rights hang in the balance of the next presidential election. But imagine you are Justice Ginsburg. How would you take repeated suggestions that your day on the Supreme Court is over? “I think one should stay as long as she can do the job,” Justice Ginsburg said in December.
Whatever Justice Ginsburg’s reasoning for resisting the chorus—maybe she expects Hillary to win the White House in 2016, and would like to have her replacement appointed by a President Clinton, just as she was—Emily Bazelon is right that she “has made it more than clear that she isn’t going to retire because columnists and law professors think she should.” There is something strange and unseemly about public calls for a vigorous justice to retire. 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? Marc A. Tracy, writing in the New Republic, at least acknowledges the nerve involved in offering thisunsolicited advice:
Where do I get the chutzpah? Partly it is from the knowledge that this is the way things work—that a justice appointed and confirmed in 2014 is likely to be more liberal than a justice appointed in 2018, or 2028, or any time when we do not know the composition of the presidency and Senate for sure—and that there will be untold cases on individual privacy, corporate speech and power, abortion, discrimination and voting rights, gun control, and who knows what else in the interim where we could use all the liberal justices we can get.
Linda Greenhouse, the former Supreme Court reporter at the New York Times, thinks the liberal anxiety over Justice Ginsburg’s successor is overblown. She told Ms Bazelon last year that Justice Ginsburg “has to believe that justice will win out in the end—or that, if it doesn’t, her departure at one point or another couldn’t be the major factor.” Realists with historical memory must admit that presidents have often appointed justices whose decisions they later lament. From 1838 to 2009, the chances a justice toed the president’s ideological line were, as Christine Kexel Chabot and Benjamin Remy Chabot show, “no better than a coin flip.”
Justice Ginsburg is no political naïf. She knows that Mr Obama’s popularity is on the wane. Given his weakened position, Mr Obama is very unlikely to risk drawn-out confirmation hearings by putting forward a Supreme Court appointee with a strongly liberal record. Sorry, progressives, but Professor Laurence Tribe and his ilk are not in play. Youth, experience, intellectual gifts and ties to the administration are likely to be the biggest factors with any future Obama appointees; as Tom Goldstein argued two years ago, “strong ideology” is not on the list. Whoever replaces Justice Ginsburg—the well-regarded but ideologically ambiguous Sri Srinivasan is often mentioned as a contender—is almost certain to be closer to the centre.
By the same token, if a Republican takes the White House in the 2016 election, we aren’t likely to see an Antonin Scalia or Clarence Thomas in the offing. Slim majorities and a polarised electorate make extreme choices unlikely. Justice Ginsburg likes her job and wants to hold on to it as long as she feels she’s serving the country. She seems to have a sense that the weight of history is not riding on her choice of retirement date quite as much as everyone seems to think.